Gouard v. State, A-12659
| Citation | 335 P.2d 920 |
| Decision Date | 18 February 1959 |
| Docket Number | No. A-12659,A-12659 |
| Parties | Robert GOUARD, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court
Before physical object allegedly taken in commission of burglary is admitted in evidence, it must be sufficiently connected with the crime itself by proper identification. However, it is not necessary that such identification should positively and indisputably describe such article. If it is sufficiently described to justify its admission in evidence, the lack of positive identification goes to the weight of such evidence rather than its admissibility.
Appeal from the District Court Tulsa County; W. Lee Johnson, Judge.
Plaintiff in Error, Robert Gouard, was convicted of the crime of burglary in the second degree, after former conviction of a felony, sentenced to confinement in the state penitentiary for thirty years, and he appeals. Affirmed.
Robert Gouard, pro se.
Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., for defendant in error.
Plaintiff in error, Robert Gouard, defendant below, was charged by information in the District Court of Tulsa County, Oklahoma, with the crime of burglary in the second degree, after former conviction of a felony, conjointly with two others, one Clayton Carl Tidwell and one Jose Rodriquez. He was granted a severance, tried to a jury, convicted as charged in the information, and his punishment fixed at thirty years in the state penitentiary. Judgment and sentence were entered accordingly, from which this appeal has been perfected.
This appeal is brought by the defendant without the benefit of counsel, he being presently confined in the state penitentiary. It is the policy of this Court to closely scrutinize the record in such instance for errors and irregularities.
The state's evidence disclosed that on the morning of the 8th of January, 1958, the Friendly Tavern, 5319 East Admiral Place, Tulsa, Oklahoma, was burglarized. The bar maid, Beulah Bornhouser, and the proprietor, E. W. Rogers, testifed that on their arrival the morning of the 8th of January, 1958, they discovered the padlock from the front door lying on the bar, broken. They testified the articles taken in the burglary were several pair of men's stretch hose, some billfolds, earrings on a display 'tree', and cigarette lighters. All these items were kept on the back bar for sale to customers. Also missing were some cigars, beer, the proprietor's flashlight, and between $150 and $200 in cash. It was further established that the coin operated record player, cigarette machine, and shuffle board had been broken into, cigarettes taken from the cigarette machine, and money taken from all the machines. This evidence is uncontroverted by the defendant and clearly establishes the corpus delicti of the offense, the breaking and entering of the tavern and the taking of the above set forth articles.
These witnesses were shown, over objection, for purpose of identification, several articles which were later revealed to have been taken from the automobile in which the defendant was riding when arrested and from his person. These articles were several pair of men's stretch hose, four billfolds, numerous pair of earrings on a display 'tree', cigarette lighters, and a flashlight. Neither of the witnesses could positively identify these articles as being the identical articles taken in the burglary, but testified they appeared to be the same or were at least similar, with one exception. Witness Rogers testified the flashlight was one he had kept in the bar for almost a year, although the effect of his testimony was weakened on cross examination by his method of identification. He also testified one of the lighters handed him was definitely not one of the lighters taken in the burglary.
Officer Ad Apyne of the Tulsa Police Department testified his...
To continue reading
Request your trial
-
Smith v. State
...affects the weight of the evidence rather than its admissibility. See State v. Hill, 193 Kan. 512, 394 P.2d 106; Gouard v. Oklahoma (Cr.Ct. of App. of Okl.), 335 P.2d 920; State v. Westphal, 62 Wash.2d 301, 382 P.2d 269, cert. denied, In People v. Cullen, 37 Cal.2d 614, 234 P.2d 1, a murder......
-
State v. Ponthier, 10183
...579 (1954); Lee v. State, 236 Miss. 716, 112 So.2d 254 (1959); People v. Weaver, 18 Ill.2d 108, 163 N.E.2d 483 (1960); Gouard v. State, 335 P.2d 920 (Okl.Cr.App.1959). We recognize that an adequate explanation by an accused of his possession of recently stolen property may require an acquit......
-
Kern v. State
...coins. At trial the coins were positively identified by the prosecuting witnesses and properly admitted into evidence. See Gouard v. State, Okl.Cr., 335 P.2d 920, wherein this Court held as 'Before physical object allegedly taken in commission of burglary is admitted in evidence, it must be......
-
Cheatham v. State, A--15237
...in fact his (CM 62). The tires found in the defendant's car were of the same brand as those missing from his business. In Gouard v. State, Okl.Cr. 335 P.2d 920, we held: "Before physical object allegedly taken in commission of burglary is admitted in evidence, it must be sufficiently connec......