Devore v. State
| Decision Date | 08 March 1926 |
| Docket Number | A-5115. |
| Parties | DEVORE v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
The want of consent of the owner to the taking of his property alleged to have been stolen, is an essential ingredient of the crime of larceny. It is not required, however, that such want of consent be proven by direct and positive evidence. It may be proven by circumstances the same as any other fact.
Where a conviction is had upon circumstantial evidence, if the facts proven are consistent with each other and with the theory of the guilt of the accused, and inconsistent with innocence and sufficient to convince the jury beyond a reasonable doubt of the guilt of the accused, they are sufficient. This is all that the law requires in such cases.
An accused is not entitled to a new trial on the ground of newly discovered evidence, where there is a total lack of diligence to discover and procure the evidence in the first instance.
Appeal from District Court, Grant County; Claude Duval, Judge.
Verne Devore was convicted of grand larceny, and he appeals. Affirmed.
Ernest F. Smith, of Enid, for plaintiff in error.
Geo. F Short, Atty. Gen., and V. P. Crowe, Asst. Atty. Gen., for the State.
The plaintiff in error, hereinafter called defendant, was convicted in the district court of Grant county on a charge of grand larceny and sentenced to serve a term of one year in the penitentiary.
The record discloses that on the 8th day of March, there was stolen from the home of Ray Lakey, near Renfrow, in Grant county, certain personal property consisting of clothing, a Winchester shotgun, and a violin. It appears, incidentally, that property was stolen from other parties at the same time, which was also found later with the property stolen from Lakey. On the same day the defendant and his codefendant, Farnsworth, were seen in a Ford car in the neighborhood where the larceny was committed. The following morning part of the property was shipped by Farnsworth from Tonkawa, 50 miles from the place of the larceny, to Gage; the defendant being with his codefendant, Farnsworth, at the time. On the 10th they were apprehended togther, a portion of the stolen property was in the car in which they were traveling. There was testimony that defendant claimed a part of the property. The defendant testified he was not with his codefendant until the morning of the 9th at Tonkawa, at which time a stranger appeared and sold the property in question to Farnsworth, and that defendant then loaned Farnsworth $20 to help pay for it; that he procured the box in which a portion of it was shipped to Gage by Farnsworth; that he bought a leather jacket from Farnsworth, which was stolen, and which he had on at the time of his arrest.
The assignments of error are argued as follows: First, insufficiency of the evidence; second, error of the court in overruling supplemental motion for a new trial; third, errors of law occurring at the trial.
Under the first assignment, it is contended that there is no proof that the property alleged to have been stolen was taken without the owner's consent. The want of consent was not proven by any direct question and answer, but there is proof that the property stolen was taken from the residence of the prosecuting witness in the absence of himself and family, and on his return he discovered the loss, and at once took steps to find and recover the property, and appeared as a prosecuting witness. This is as conclusive proof of the want of consent as the direct statement of the witness would have been. It is the better practice to prove by direct and positive...
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