Fuller v. State

• Decision Date: 23 October 1940
• Docket Number: A-9679.
• Parties: FULLER v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

106 P.2d 832

70 Okla.Crim. 408

FULLER v. STATE.

No. A-9679.

Court of Criminal Appeals of Oklahoma

October 23, 1940

Syllabus by the Court.

1. 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.

2. The accused in a felony case is always entitled to an arraignment and plea before his trial; however, this is one of the rights of the defendant which may be waived by him.

3. Where the defendant announces ready and proceeds to trial without objection, he thereby waives his right to an arraignment and plea.

4. The court did not err in referring to the defendant as Fat Fuller in his instructions to the jury, where the information charges the defendant under the name of Fat Fuller and all the witnesses referred to him by that name, even though the true name of the defendant is revealed to be Roscoe Fuller. Such action of the court not being deemed prejudicial in view of the further fact that the attorney for the defendant continually referred to the defendant as Fat Fuller in his questioning of the witnesses.

5. Record examined, and held to be sufficient to sustain a conviction for larceny of live stock.

Appeal from District Court, Carter County; John B. Ogden, Judge.

Roscoe (Fat) Fuller was convicted of larceny of livestock, and he appeals.

Judgment affirmed.

R. A Howard, of Ardmore, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen for defendant in error.

JONES Judge.

The defendant, Roscoe Fuller, was charged in the District Court of Carter County with the crime of larceny of live stock, was tried, convicted and sentenced to serve two years in the State Penitentiary, and has appealed.

For a proper discussion of this case, a short review of the testimony should be given.

Less Pogue testified that on October 6, 1937, two white hogs were stolen from his place. That about ten days thereafter, acting upon certain information he had received, he went to the defendant's place, accompanied by his two boys. That the defendant first denied having any hogs, and then admitted having two hogs which he was fattening; that the defendant had Pogue's two hogs in the defendant's pen; that the defendant said he bought them from a fellow across the creek, but refused to give Pogue the name of the fellow across the creek from whom the defendant claims he bought the hogs. That the defendant made the suggestion that if the witness would keep the law off of him until that night that he would go over and see that fellow and see if the hogs were Pogue's. That the defendant came to his home after dark that night and told him that he had found out that the hogs were Pogue's and for him to come up and get them. That the witness accompanied by the deputy sheriff went after the hogs the next day. That the hogs were stolen in Carter County.

Upon cross-examination, he testified that his place is about twelve or fourteen miles from the defendant's. That he never had signed a complaint against anybody for stealing his hogs.

J. D. Pogue and Fred Pogue, the two sons of Less Pogue, testified to substantially the same state of facts as was testified to by their father, Less Pogue.

Barney Ross testified that he was a Deputy Sheriff of Carter County. That Less Pogue advised him on October 9, 1937, that two of his hogs had been taken. That on October 16th he was up at the defendant's house with Pogue. That the defendant was not at home. That Pogue took two white hogs which were there at the defendant's place back home with him.

The defendant did not demurr to the evidence, but proceeded immediately at the close of the State's case to put on his witnesses.

Liza Pickens testified that she was the mother-in-law of the defendant. That one night early in October her son, Mose Clay, brought some hogs to the defendant's place. That the defendant was not at home; but was down to Simon Clay's. That Mose Clay went after the defendant and returned in a little while with him. That Mose Clay had made a corn crop there with the defendant, but had moved away from the place along in the summer, and had left the corn there for the other boys to gather. That these hogs that Mose Clay brought there were the same white hogs that Mr. Pogue came after. That her son brought the hogs there in his old, black car. That the defendant did not have a wagon or automobile or any other kind of vehicle. That the witness was living with Fat Fuller, the defendant, and had lived with him for a number of years.

The defendant testified in his own behalf that he did not own either a wagon or automobile. That he did have a horse. That Mose Clay brought the hogs to his place; that Mose had some corn there at his house which he wanted to use to fatten the hogs which he brought there. That he had no claim on the hogs, but was just fattening them for Mose Clay. He denied making the statements to Less Pogue about which Pogue testified. That Mose Clay brought the hogs there in a Model "A" Ford which belonged to Mose. That he told Pogue, when Pogue inquired about the hogs, that they belonged to a fellow across the creek. That after Pogue left, he had Mr. Oakman take him to see Mose; and he found out the hogs belonged to Mr. Pogue, and went on over to Pogue's house and told Pogue they were his hogs, and for him to come and get them.

This was all the proof on behalf of the defendant.

In rebuttal, the State introduced evidence from Barney Ross that he examined the 1929 Model "A" Ford which belonged to Mose Clay on the 19th of October; that two of the tires were flat and the car looked as if it had not been moved in several weeks. That this automobile was just a wreck of a car.

Mose Clay testified that at the time the hogs were stolen, he was at Paul Heartsill's place hauling cotton and cattle for Heartsill in Heartsill's truck. He denied taking the hogs to the defendant's place, or knowing anything at all about the hogs. He testified that he had a 1929 Model "A" Ford, but that it was not in running condition in the month of October and had not been used by him for a long time. That he left Fat's place where he had been making a crop before the corn was even in roasting ears, and had not seen the defendant until after he was arrested on this charge. That the witness was also arrested, but was dismissed after a preliminary hearing.

Paul Heartsill testified that Mose Clay was working for him at the time he was arrested on this charge of stealing hogs. That he had been hauling cotton for him for about three weeks before he was arrested. He testified that on the night he was supposed to have stolen the hogs that Mose Clay hauled cotton with him to the gin and stayed until around midnight, and then went back home with the witness' brother, while he stayed all night at the gin. That Mose Clay's Ford automobile was not in running condition at the time the hogs were stolen and had not been in running condition for some time before that.

This was all the evidence in the case.

The defendant presented no requested instructions, and did not object to any of the instructions given by the court. We have...