Frew v. State, A--17463

Decision Date25 October 1972
Docket NumberNo. A--17463,A--17463
Citation503 P.2d 900
PartiesRoland Royce FREW, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
OPINION

BUSSEY, Presiding Judge:

Appellant, Roland Royce Frew, hereinafter referred to as defendant, was charged, tried nd convicted in the District Court of Osage County, Oklahoma, for the offense of Burglary in the Second Degree, After Former Conviction of a Felony; his punishment was fixed at a term of not less than ten (10) nor more than thirty (30) years imprisonment, and from said judgment and sentence, a timely appeal has been perfected to this Court.

At the trial, David Michael Avery testified that on May 27, 1971 he resided at 508 East Tenth Street in Pawhuska. He left home early in the morning on the 27th day of May to go to Fort Smith, Arkansas. Prior to leaving, he locked all the doors of his house. He returned on the afternoon of May 29 and entered the house through the front door. He walked through the house into the dining room and observed that his gun case door was open and six rifles, which had previously been in the case, were missing. Four guns that had been leaning against the wall were also missing. He next observed that the glass in the back door was broken and the back door was standing open. He identified State's Exhibits 4 through 11 as being guns that had been taken from his house.

Donald Fulks testified that on the evening of May 27, 1971 he and Steve Majors were riding around Pawhuska in Majors' car. They picked up the defendant and Guy Hughbanks at Hull's Laundry and continued to drive around. He testified there had been no prearranged plan to pick up defendant and Hughbanks. After some time, Hughbanks stated that he wanted out of the car and Majors stopped the car at Ninth and Revard. The defendant and Hughbanks got out of the car and proceeded north. Majors drove a short distance and stated that he wanted out. Majors got out of the car stating that he should come back and get him in about thirty minutes. He (Fulks) returned to town and continued to drive around. He returned to the location where he let Majors out and attempted to find him. He drove down Tenth Street and observed Majors, Hughbanks and the defendant in the alley at the intersection of Tenth and Revard Street. Majors asked for the keys and unlocked the trunk. They proceeded to load a fivegallon gas can and a rolled up blanket with gun stocks sticking out of it into the trunk. The defendant, Hughbanks and Majors got into the car and they took him straight home.

Steve Majors testified that on the evening in question, he and Donald Fulks were driving around Pawhuska in his car. They picked up the defendant and Hughbanks and continued to ride around. After some time, the defendant and Hughbanks stated that they wanted to get out. He let them out and drove to the Apco Station located at Ninth and Lynn. He testified that he got out because he knew his estranged wife would be driving by the station and he wanted to talk to her. He testified that he stayed at the station for some time until he heard his car about three or four blocks away. He explained that his car made a real loud noise late at night. He decided that his wife was not coming by and he would just go meet Fulks. He cut across a yard and observed the defendant and Hughbanks running down an alley. He testified that they were carrying the guns wrapped in a blanket. He opened the trunk of his car and Hughbanks put the items into the vehicle. Fulks stated that he wanted to go home and he (Majors) subsequently dropped the defendant off at the Laundry Mat and took Hughbanks home. He testified that the following morning he opened the trunk and observed the rifles and shotguns. He sold State's Exhibit 6, a Browning twelvegauge shotgun, to one Jim Kerr in Bartlesville for Eighty Dollars. He sold the other guns in Tulsa to Tom Pack for $100. He kept part of the money and gave the rest of it to Hughbanks. He admitted that he had previously received a two-year suspended sentence in Bartlesville for stealing tires.

Deputy Mitchell testified that he investigated the burglary at Avery's residence. On June 3 he had a conversation with Steve Majors at the Washington County Sheriff's Office. He and Majors went to Tulsa that evening and talked to Tom Pack's sister. He obtained permission from Miss Pack to go to a certain motel room in the Flamingo Motel and recovered seven guns. He identified the seven exhibits as being the guns recovered in Tulsa. He identified State's Exhibit 6 as a weapon he received at the Washington County Sheriff's Office from Majors.

Steve Majors was recalled and testified that when he gave Hughbanks the money from the sale of the guns, Hughbanks was in the defendant's vehicle. He testified the defendant and some other boy were also in the vehicle. When he first observed the defendant and Hughbanks in the alley, Hughbanks was carrying the guns and the defendant was carrying a gas can.

The defendant did not testify nor was any evidence presented in his behalf.

In the second stage proceeding, testimony was introduced to reflect that the defendant had previously been convicted of Burglary in the Second Degree.

The first proposition asserts that the court erred in overruling defendant's motion for new trial 'after proof that the plaintiff-in-error's trial attorney stated to the plaintiff-in-error's father in the presence of some jurors during a recess 'if he hadn't raised such a hooligan son, he wouldn't have been here. " At the motion for new trial, the defendant, his brother and his father testified that the conversation between the defendant's trial attorney and the father took place prior to final submission of the case to the jury. They testified that there were several jurors in the area that could have heard the conversation.

Raymond Stith, the defendant's trial attorney, testified that the conversation occurred after the jury had returned a verdict of guilty. He testified that the conversation was very subdued and that 'to the best of my knowledge, I don't think there were any jurors around that could hear any conversation with Mr. Frew.'

Deputy Freeman testified that he was in the anteroom and heard part of the argument between the defendant's trial attorney and his father. He testified that there were no jurors present and that the argument occurred while the jury was in the juryroom deliberating.

Deputy Mitchell testified that he was in the anteroom and overheard part of an argument between Mr. Stith and the defendant's father. He testified that there were no jurors present in the room and that the argument was 'real quiet.' He did observe two jurors at the coffee bar; however, the doors between the anteroom and coffee bar were closed.

In Still v. State, Okl.Cr., 484 P.2d 549, Judge Nix stated in the second syllabi:

'The burden is on the defendant to show that there was an authorized communication with the jury during its deliberation; and the claim of an unauthorized communication absent proof of such will not form a basis for the granting of any relief.'

In the instant case, the testimony offered by the defendant at the motion for new trial reflected merely that several of the jurors could have heard the conversation between the defendant's attorney and his father. None of the jurors were called to testify that they did in fact hear such conversation. We therefore find that the defendant did not meet the burden to show that there was an unauthorized communication with the jury.

The second proposition asserts that the trial court erred in overruling the defendant's demurrer in that the evidence was insufficient to convict the defendant since such evidence was circumstantial and did not exclude every other reasonable hypothesis other than the guilt of the defendant. From the foregoing statement of facts, we are of the opinion that there was competent evidence, although circumstantial, from which the jury could reasonably conclude that the defendant was guilty as charged. We therefore find this proposition to be without merit.

The third proposition asserts that the court erred in overruling defendant's demurrer and in overruling the motion for new trial based upon the fact that the evidence used to convict was only that of accomplices and therefore insufficient. The defendant contends that both Donald Fulks and Steve Majors assisted in the commission of the crime and, therefore, were both accomplices. We cannot agree with this contention....

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4 cases
  • Downs v. State
    • United States
    • Wyoming Supreme Court
    • July 13, 1978
    ...900. Placing defendant in the area of the scene of the crime, along with possession is sufficient to sustain a conviction. Frew v. State, Okl.Cr.1972, 503 P.2d 900; Washington v. State, Okl.Cr.1976, 554 P.2d 819; State v. Devlin, 1968, 249 Or. 678, 439 P.2d 1008. See also State v. Pederson,......
  • Rose v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • April 27, 1973
    ...We cannot agree with defendant's assertion. There is no evidence that the witnesses Farris and Kemp were accomplices (see Frew v. State, Okl.Cr., 503 P.2d 900 (1972)). Accomplice's testimony as to the asportation was sufficiently corroborated by Farris and Kemp. Farris testified that she sa......
  • Campbell v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • October 13, 1982
    ...misconduct occurring before the final submission of a case to the jury. Broadus v. State, 553 P.2d 515 (Okl.Cr.App.1976); Frew v. State, 503 P.2d 900 (Okl.Cr.App.1972). We do not, however, agree with appellant's contention that no opportunity was given to make the proper showing. On the con......
  • Washington v. State, F--76--345
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • August 17, 1976
    ...crime, together with possession of stolen property, is sufficient to connect him with the actual breaking and entering. Frew v. State, Okl.Cr., 503 P.2d 900 (1972); Cheatham v. State, Okl.Cr., 483 P.2d 1172 (1971). In contrast, the defendant contends that his evidence explained the commissi......

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