Graham v. State
| Decision Date | 21 October 1915 |
| Docket Number | A-2153. |
| Citation | 152 P. 136,12 Okla.Crim. 84,1915 OK CR 204 |
| Parties | GRAHAM v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
It is well settled that this court will not disturb the verdict on account of the evidence when there is evidence to support it. The converse rule is equally well settled that it is not only the province, but the duty, of the court to set aside such verdict when it is contrary to the evidence, or when there is no evidence to support it.
The possession of stolen property recently after the larceny may or may not be an incriminating circumstance. Whether it is or not depends upon the facts and circumstances connected with such possession; and, where the testimony for the state standing alone, raises a presumption of fact in favor of an innocent possession, and there is nothing in it from which the jury may legitimately infer a felonious taking, the evidence is insufficient to sustain a conviction; and, where the defendant's explanation that he bought the cattle is undisputed, and is supplemented by the testimony of as many witnesses as the court would permit to testify as to his good character and honesty, the law will presume in behalf of innocence. It supposes legality rather than crime.
Appeal from District Court, Stephens County; J. T. Johnson, Judge.
Emmet Graham was convicted of cattle stealing, and appeals. Reversed.
Bond & Sandlin and J. B. Wilkinson, all of Duncan, and Hainer, Burns & Toney, of Oklahoma City, for plaintiff in error.
Chas West, Atty. Gen., and C.J. Davenport, Asst. Atty. Gen., for the State.
The plaintiff in error was convicted on an information wherein he was charged with the larceny of 20 head of cattle, the personal property of H. S. Gross, and his punishment fixed at five years' imprisonment in the penitentiary. From the judgment rendered on the verdict, an appeal was taken by filing in this court on December 23, 1913, a petition in error with case-made.
A substantial statement of the evidence is as follows:
H. S Gross testified that he lived 12 miles east of Duncan; that on or about the 3d day of February 20 head of his cattle were taken from his pasture; that, with Mr. Adams, he tracked the cattle into and out of the defendant's pasture and on through the town of Doyle and into the town of Marlow; that the tracks showed that one man on horseback drove the cattle to the defendant's pasture, and that two men on horseback drove the cattle into Marlow; that when he arrived at Marlow he found that the cattle had been shipped to Wichita in the defendant's name; that he saw Jesse Graham and told him he wanted to see Emmet, and Jesse telephoned to the defendant, and he came to town; that he told the defendant about his cattle being taken, and they were "Three Diamond stuff," and the defendant said, "Yes; I have handled 14 head of 'Three Diamond stuff,' " and that he had bought the cattle, and showed the stub of a check, saying, "If the cattle are yours, I would just as soon pay you as pay the other fellow," that he wanted the right man to have the money, and would like to have a few more days to find out something about the check, that he wanted to stop the payment of the check, and that he would turn over his team and buggy to witness until he got it straightened out; that three or four days later he paid witness $350 by check on the bank at Marlow.
Walter O'Quinn testified that he lived 9 or 10 miles from Marlow, and saw the defendant driving a bunch of cattle by his place about the time some cattle were stolen from Mr Gross; that he often saw the defendant driving cattle.
Elmer Lowe testified that he lived 11 miles from Marlow, and saw the defendant about the time Mr. Gross's cattle were stolen driving a bunch of cattle; paid no particular attention to the defendant, because he had noticed him handling cattle around there for five or six years; that it was about noon when he saw him.
The defendant, as a witness in his own behalf, testified that he was twenty-six years old; had lived in that community all his life; that he bought the cattle in question from H. D Wilson, and paid him $305 for them, and shipped them to Jones Bros., at Wichita; that he left his place 18 miles from Marlow and drove them there that day; that the next day, in answer to a telephone call from his brother, Jesse, he went to Marlow and met Mr. Gross, who told him he had lost some cattle, and that his brand was "Three Diamond Slash," and he told Mr. Gross that he had shipped 14 head of that brand that he had bought from H. D. Wilson, and Mr. Gross said all he wanted was pay for the cattle, and he told him if he could get the check back he would pay him; that he went to see Wilson, and told him that there was a fellow in Marlow claiming the cattle that he had bought of him; that Wilson got mad, and said that he had bought part of the cattle and had raised the rest of them. The court sustained the state's objection to any further testimony as to what...
To continue reading
Request your trial