Daniels v. State

• Decision Date: 11 September 1940
• Docket Number: A-9664.
• Citation: 105 P.2d 558,70 Okla.Crim. 207
• Parties: DANIELS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

105 P.2d 558

70 Okla.Crim. 207

DANIELS v. STATE.

No. A-9664.

Court of Criminal Appeals of Oklahoma

September 11, 1940

Syllabus by the Court.

In a prosecution for grand larceny, evidence reviewed and held sufficient to sustain the verdict and judgment of conviction.

Appeal from District Court, Ottawa County; Ad V. Coppedge, Judge.

Horace Daniels was convicted of grand larceny, and he appeals.

Judgment affirmed.

D. C DeVilliers, of Quapaw, and Smith & Walker, of Miami, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and J. L. Pullen, Asst. Atty. Gen for the State.

DOYLE Presiding Judge.

Plaintiff in error, Horace Daniels, was convicted in the District Court of Ottawa County of the crime of grand larceny, and in accordance with the verdict of the jury was sentenced to serve a term of two years in the state penitentiary.

Appellant, Daniels and one Carl Collins were jointly charged in the information upon which he was convicted, which information in substance charges that the defendants did in Ottawa county on the 30th day of December, 1937, take and steal from the owner, the Skelton Lead and Zinc Company, shafting, pulleys, T-rails, pipe, line shaft bearings, and eccentric collars, all of the value of more than Twenty Dollars.

It appears that upon arraignment the defendants asked for and a severance was granted.

From the judgment rendered December 2, 1938, he appeals.

The grounds of defendant's motion for a new trial and now assigned as errors are: That the court erred in not sustaining defendant's demurrer to the testimony at the time the state rested its case; that the verdict of the jury was contrary to the evidence introduced in said cause.

It is contended that the evidence is insufficient to sustain the conviction, and that the trial court erred in overruling the defendant's demurrer to the evidence, and in refusing to direct a verdict of acquittal.

The facts which are undisputed, or which the evidence tends to prove, are: The Skelton Lead and Zinc Company occupies 200 acres of land near Century, Ottawa county, and had thereon the company's main office, a concentrating mill, a tailing mill with machinery and equipment, including shafting, pulleys, T-rails and line shafting with eccentrics thereon. A line shafting is ordinarily about twenty feet long and there were three or four joints of line shafting, equipped with collars, taken from the tailing mill within two or three days before the date alleged in the information. That the fair value of this shafting was not less than a dollar a foot, and the fair value of the pulleys and collars attached thereto would be from Five to Seven Dollars apiece, second hand.

Earl Childress, an official of the Skelton company, testified that he never did authorize any one to take the machinery or any parts of the machinery away from the lease and did not delegate any one with authority to dispose of the same; that following the arrest of the defendants he saw some of this line shafting in the Monroe Iron Company junk yard in Picher.

A. O. Jackson testified that he had occasion to go to the old No. 7 tailing mill on December 30, the date alleged. There he found this defendant, together with his codefendant and two or three boys, a cable fastened to defendant Daniels' truck was tied to a joint of line shafting and there was iron on the truck, including two eccentrics that were broken up.

That he called the sheriff's office and a deputy sheriff came out and arrested the defendants, that with Earl Childress he went to Ben Raymond's junk yard in Picher and there saw line shafting of the same kind.

Cross-examination.

"Q. Did you ask Mr. Daniels about this stuff on the truck when you came up there? A. Yes, I asked him.

Q. Did he advise you as to whose it was, or what his connection with the lease? A. He told me Mrs. Lockwood gave it to him.

Q. Didn't he tell you he had been hired by some other boy and was getting a dollar a load to haul some of this junk? A. Not at that time, he didn't; later on he did."

Alfred Van Treece testified that he works for the Skelton Company, knew Horace Daniels, and saw him on the lease by the old No. 7 mill loading scrap iron on a truck; that he told him to leave it alone, go away and not to come back; that this was three or four days before the day he called the law and had the defendants arrested.

Ben Raymond testified that he is in the junk business in Picher, doing business as the Monroe Iron Company; that he knows Horace Daniels, and remembers him bringing in some junk in a truck about a week before the day he was arrested; that at that time he bought some line shafting from him.

On cross-examination he was handed tickets dated December 29, 1937, for 2,700 pounds of mixed iron, issued to Douglas Spry; didn't know whether it was for Daniels or not; it could be. Handed another for 975 pounds cast iron, and another ticket, the same date, for 450 pounds of scrap iron, purchased from Donaldson; another the same date, 1360 pounds of iron, from R. Flowers, another the same date, 500 pounds iron from C. Penny.

When the state rested its case, the defendant demurred to the evidence for the reason that the same is not sufficient to sustain the allegations of the information; and moved the court to direct the jury to return a verdict of not guilty. The Court: Demurrer and motion overruled. The defendant excepts.

As a witness in his own behalf the defendant testified:

"Well, I heard of lots of them getting junk there, and a lady named Mrs. Lockwood, she claimed she owned an interest in the mine and her husband owned an interest in the mine and I asked her for some of the junk, and she told me not to get anything, only, well, what was not any account, only for junk, and I said 'all right', so I went and got--she went out and showed me what I could have and I loaded it and went up by and showed her what I had on the truck, and she said it was all right, go ahead and take it, I taken about three jags.

Well, I went back there to get a little more junk, and this junk on the truck was what she told me I could have, and she said it was all right, go ahead and take it, she said she would stand between me and all trouble.

Willard Spry asked me what I would take to pull this line shafting off, I asked him if that was given to him, and he said it was, I said, I can't pull that line shafting off, it is impossible, and he said he would give me fifty cents to pull it off, and while I was standing there talking to Jim Watkins a cable was tied on the truck and also to the line shaft, I did not tie it."

Cross-examination.

"Q. When did you first start hauling iron away from there, pieces of machinery? A. Last December, I guess.

Q. Now, on December 3, 1937, you hauled 2550 pounds cast iron from there to the Monroe Iron Works? A. Well, I didn't haul it for myself, no.

Q. On

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