Eaton v. State

• Decision Date: 02 June 1965
• Docket Number: No. A-13453,A-13453
• Citation: 404 P.2d 50
• Parties: Sherman C. EATON, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 50

404 P.2d 50

Sherman C. EATON, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-13453.

Court of Criminal Appeals of Oklahoma.

June 2, 1965.

Rehearing Denied Aug. 2, 1965.

Syllabus by the Court

1. It is not essential that corroborating evidence shall cover every material point testified to by the accomplice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to some material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all. Such corroborating evidence, however, must show more than the mere commission of the offense or the circumstances thereof.

2. If hearsay evidence is admitted without objection, it may be considered as fully as though it were admissible. The only question being with regard to how much weight should be given to it under the particular circumstances of the time and place of making of the declaration and the identity and knowledge of the declarant.

3. When the defendant takes the witness stand the prosecution has the right to cross-examine him with the same latitude as any other witness. Under the statute he may be interrogated concerning his prior convictions for crime. (Title 12 O.S.A. § 381)

An appeal from the District Court of Seminole County; Bob Howell, Judge. Sherman C. Eaton was convicted of Larceny of Domestic Animals, and appeals. Affirmed.

Marshall Huser, Wewoka, for plaintiff in error.

Hugh C. Collum, Asst. Atty. Gen., for defendant in error.

NIX, Judge.

Sherman C. Eaton, hereinafter referred to as defendant, was charged by information in the District Court of Seminole County with the offense of Larceny of Domestic Animals. He was tried before a jury, found guilty, and his punishment assessed at Three Years in the penitentiary. He lodged his appeal timely in this Court, asserting three assignments of error:

(1) There was no competent evidence which would corroborate the testimony of the accomplice;

(2) The defendant was convicted upon hearsay testimony, therefore the verdict was not obtained by due process; and

(3) There was evidence of an offense other than the one charged.

The testimony reflects that a Mr. & Mrs. Dan Leitch, who lived on highway 270, west of Wewoka, discovered two calves missing on January 27, 1963.

Larry Wayne Newman testified that one Bill Trimble hired him to help load some cattle. That he and Bill went to the defendant's home, borrowed his pickup, and proceeded to borrow some sideboards to be used on the pickup in which they were to load the cattle. For his assistance in loading said cattle, he was to be paid $5.00. Trimble later that evening came by and picked him up. They proceeded to the defendant's home, arriving there about 7:00 p. m. on January 26, 1963. After visiting awhile, defendant and Mrs. Eaton, Trimble, and Newman proceeded in the defendant's pickup to a place near the Leitch's home and loaded two calves. They then drove to Oklahoma City's Stockyards. While driving to Oklahoma City, defendant became drunk and Trimble took over the driving and completed the trip. When they arrived at the Stockyards, Trimble backed the pickup up to chute #37 and with Newman's help, unloaded the cattle. He further testified that Trimble handled the transaction necessary for turning the cattle over to the Stockyards for sale. That defendant was at the time in the floorboard of the pickup, and because of intoxication, was not in a position to carry on much conversation. That he didn't know the cattle were stolen.

Mrs. Trimble testified that her son, Bill Trimble, received a check by mail 3 or 4 days after the alleged theft. The check was from the Central Commission Company, and given on the Stockyards Bank of Oklahoma City in the amount of $150.94. That her son went to the mail box, returned with the check, and opened it in her presence. That he told her where the stolen cattle were, and she immediately called Sheriff Nicholson. That some two weeks before defendant's trial, Bill Trimble left for honolulu.

Sheriff Nicholson, who had previously inquired of Mrs. Trimble relative to any stray cattle, stated he received her call and went to her house at her request. That Trimble and Newman told him about the transaction and they proceeded to Seminole where Trimble and Newman were to meet the defendant and divide the money. On the way to Seminole, he saw the defendant in his pickup. That the defendant turned around and started back, and at that time, Sheriff Nicholson called the Under-Sheriff to pick him up. Defendant was apprehended and placed in jail.

The defendant testified that Bill Trimble talked with him on Wednesday before the cattle were stolen on Saturday, and offered him $25.00 to rent his truck to haul some cattle to Oklahoma City. That Trimble came by his home the following Saturday afternoon and got his pickup and went to get some sideboards. That Bill Trimble and Larry Newman returned to his house about 7 or 7:30. That he had made no arrangements with Newman whatsoever. After approximately 1 1/2 hours, they proceeded to the Leitch farm and loaded the cattle. Defendant's wife followed in their car until it developed mechanical difficulties and they returned home and all rode in defendant's pickup. After loading the cattle, all four started to the stockyards. Defendant drove part of the way and admitted becoming intoxicated and turning the wheel over to Trimble. His contention was that he had no knowledge of the cattle belonging to someone else, that he merely rented his truck to Trimble and was to get $25.00 for the trip. On cross-examination of defendant, the following testimony appears:

'Q. All right. Well Mr. Eaton, what do you reckon would possess a young man (Bill Trimble) that he would steal a couple of head of cattle out there and get you to go with him, and get $150.00 check in his hand and then go tell the Sheriff about it?

A. I didn't know he was stealing 'em.

Q. Well, thats what you testified to, wasn't it?

A. Not that he was stealing 'em. I didn't know he----

Q. Well, he did, didn't he? You're saying he did.

A. I'm saying--I know it now, yes, sir.

Q. Either he or Mr. Newman did, didn't they? You didn't.

A. We all stole 'em, if they were stolen, yes, sir.'

Defendant's wife testified and related in substance a verification of defendant's testimony.

A review of this testimony compels us to hold adversely to defendant's contention that the testimony of Newman, the accomplice, was not corroborated sufficiently to justify a conviction. This may have been true had defendant and his wife remained silent. However, they testified to facts substantiating the testimony of the accomplice, Newman. They admitted Newman and Trimble came by their home as he had stated; that defendant and his wife went with them in defendant's pickup to the scene of the crime, loaded the cattle and drove to the stockyards in Oklahoma City where the cattle were unloaded. The only substantial difference in their testimony was that defendant contended he rented them the pickup for...