Gower v. State, A-12262

Decision Date18 April 1956
Docket NumberNo. A-12262,A-12262
Citation298 P.2d 461,1956 OK CR 49
PartiesWalter Lee GOWER, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Syllabus by the Court.

1. Evidence examined and found to support the verdict and judgment finding defendant guilty of crime of larceny of an automobile, after former conviction of a felony.

2. Where defense of accused was that at the time the officers found him in possession of the automobile in question his mental

condition was so impaired from the consumption of intoxicating liquor that he was not capable of forming a mental intent to steal the car, and where he presented evidence to support such defense, the question so raised was one for submission to the jury.

3. Record examined and it is found that the court properly submitted to the jury by appropriate instructions defendant's theory of his case, and that there was ample evidence in the record refuting such theory.

4. Sentence of 25 years confinement in the penitentiary on conviction of a charge of larceny of an automobile, after former conviction of a felony, and where the defendant testified and admitted conviction of a series of felonies and misdemeanors, found not to be excessive. 21 O.S.1951 § 1720; 21 O.S.1951 § 51.

Appeal from the Court of Common Pleas of Tulsa County, Oklahoma; Lewis C. Johnson, Judge.

Walter Lee Gower was convicted of the crime of larceny of an automobile after former conviction of a felony, sentenced to 25 years in the state penitentiary, and has appealed. Affirmed.

Walter Lee Gower, pro se.

Mac. Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

POWELL, Judge.

The plaintiff in error, Walter Lee Gower, was charged by information in the court of common pleas of Tulsa County with the crime of larceny of an automobile, after former conviction of a felony; was tried before a jury, convicted, and his punishment fixed at 25 years confinement in the state penitentiary at McAlester. Judgment was entered accordingly.

There is a serious question apparent on the face of the record as to whether or not the appeal was properly perfected so as to present it by casemade rather than transcript. However, the defendant acted as his own attorney on appeal, and we do not have the benefit of a brief from the Attorney General, so that we shall consider the entire record.

Defendant first complains that he was represented in the trial court by the public defender, who was later sent to the mental hospital at Vinita, and defendant contends that he was not properly represented at the trial. The record shows that defendant, prior to trial, was represented by an attorney who was allowed by the court to withdraw as attorney of record, and thereafter defendant was represented by another attorney, but there is nothing in the record to show that the second attorney was a public defender, or, whatever his status, that he did not diligently represent the defendant during the course of the trial to its completion.

It is further contended that the evidence was insufficient to support the verdict, and that the jury failed to follow the court's instructions; and, finally, that the penalty assessed was excessive.

Charles David Chronister, a sixteen-year old boy, testified that he was a resident of Tulsa; that he was the owner of a 1946 Mercury four-door automobile and had owned it five or six months; his application for 1955 license was received in evidence and showed the 1954 license, Okla. 52-3211; also received in evidence was the title of witness to the car. He testified that he drove to downtown Tulsa about 8 o'clock on January 27, 1955 and parked his car on First Street between Main and Boston. He returned for the car around 9 to 9:05 P.M. and found his car missing. He was unable to find it, and went to the police station and reported the theft. He said that he had never seen the defendant prior to the trial, and that he had not given anyone permission to move his car. He said the police telephoned him at 12:30 the same night and told him that his car was at the police garage at First and Denver, Tulsa, and he went immediately and got it.

The State produced evidence to show that the defendant was seen speeding in an automobile in the city of Tulsa by Officer Lyndon W. Greaney, and that the officer attempted to stop defendant, who circled a tavern and attempted to get away, but was finally stopped. This was at approximately 9 Mp.M. January 27, 1955. He estimated the speed of defendant's car at 65 to 70 miles per hour. The car was a 1946 Mercury sedan, tan colored, tag No. 53-3211. After defendant's car was stopped he came to the back of the car. The officer asked defendant if the automobile belonged to him, and defendant asked the officer if he knew Pete Annex. The officer answered in the affirmative and the defendant then stated that the car was the property of Pete Annex, but then said the car belonged to his brother, and that he had borrowed it to drive to Bristow. Officer Greer appeared within a few minutes and then witness transported the defendant to the police station and the Tulsa Wrecker Service towed the car to the police garage. It was the opinion of witness that the defendant was not intoxicated. Witness did not detect the odor of alcohol about him. He filed a charge against the defendant of operating a motor vehicle without a driver's license, and a Mr. G. W. Strange signed a complaint charging the defendant with reckless driving.

It was stipulated between the parties that the records in the office of the district court clerk of Tulsa County would show that previously and on April 4, 1939 in case No. 9192 defendant was convicted of the crime of second degree burglary, and sentenced to serve a term of three years in the state penitentiary at Granite; and that on June 8, 1949 in case No....

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4 cases
  • McDaniel v. State, 50037
    • United States
    • Mississippi Supreme Court
    • March 15, 1978
    ...of reason." People v. Lion, 10 Ill.2d 208, 139 N.E.2d 757, 760 (1957) or "impossible . . . to form a criminal intent." Gower v. State, 298 P.2d 461, 464 (Okl.Cr.1956). It is clearly established in Mississippi that the credibility of witnesses is particularly within the province of the jury ......
  • In re Revisions to Uniform Jury Instructions
    • United States
    • Oklahoma Supreme Court
    • July 28, 2005
    ...159 P. 937 (1916). See also Couch v. State, 1962 OK CR 130, 375 P.2d 978 (Okl.Cr.1962) (second degree burglary); Gower v. State, 1956 OK CR 49, 298 P.2d 461 (Okl.Cr.1956) (larceny of automotive driven vehicles); Kerr v. State, 1954 OK CR 131, 276 P.2d 284 (Okl.Cr.1954) (larceny of domestic ......
  • In Re: Adoption Of The 2010 Revisions
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • January 25, 2011
    ...Okl. Cr. 500, 159 P. 937, 12 Okl. Cr. 500. See also Couch v. State, 1962 OK CR 130, 375 P.2d 978 (second degree burglary); Gower v. State, 1956 OK CR 49, 298 P.2d 461 (larceny of automotive driven vehicles); Kerr v. State, 1954 OK CR 131, 276 P.2d 284 (larceny of domestic animals); Walker v......
  • Rodman v. State, F-77-374
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • August 31, 1977
    ...i. e., that he was so intoxicated he did not possess the necessary criminal intent to escape. See, 22 O.S.1971, § 152 and Gower v. State, Okl.Cr., 298 P.2d 461 (1956). We dismiss this assignment of error on the grounds that the defendant failed to preserve the alleged error by not objecting......

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