Gransbury v. State

• Decision Date: 22 July 1938
• Docket Number: A-9509.
• Citation: 81 P.2d 874,64 Okla.Crim. 408
• Parties: GRANSBURY v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

81 P.2d 874

64 Okla.Crim. 408

GRANSBURY v. STATE.

No. A-9509.

Court of Criminal Appeals of Oklahoma

July 22, 1938

Syllabus by the Court.

1. Under the burglary statute it is necessary to prove a breaking and entering, but it is not necessary that defendant be actually seen in the act of breaking and entering. These facts are generally proved by circumstances.

2. The mere possession of property recently stolen is not sufficient to convict the possessor of larceny or burglary of it. But when this fact is supplemented with other facts inconsistent with the idea that the possession is honest, it then becomes a question of fact for the jury to pass upon the guilt or innocence of the defendant.

3. Where objection was made to the introduction of a certain exhibit, and the record does not reveal that said exhibit was offered in evidence, defendant can not complain.

4. See opinion for instruction on circumstantial evidence held not to be error.

5. Article 7, Chapter 15, Session Laws 1937, 21 Okl.St.Ann. §§ 1723, 1724, does not repeal Section 1931, Oklahoma Statutes 1931, Okl.St.Ann., Tit. 21, § 1435.

Appeal from District Court, Grant County; O. C. Wybrant, Judge.

Henry Gransbury was convicted of the crime of burglary in the second degree, and he appeals.

Judgment affirmed.

A. O Manning, of Fairview, for plaintiff in error.

Mac Q Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Ellis W. Eddy, Co. Atty., of Medford, for the State.

BAREFOOT Judge.

The defendant was charged with the crime of burglary in Grant County, was tried, convicted of burglary in the second degree, and sentenced to serve a term of four years in the penitentiary, and has appealed.

Defendant's first assignment of error is that the verdict of the jury is contrary to law and the evidence, and the court erred in overruling his demurrer to the evidence offered by the state.

This contention is based principally upon the fact, that the evidence relied upon by the state is partially circumstantial, and there was no direct evidence that the defendant was present, or entered the granary which it was claimed was burglarized. The evidence discloses that Sam Halcomb owned a granary located 8 miles southwest of Pond Creek, in Grant County, Oklahoma; that there was stored in said granary about 2800 to 3000 bushels of wheat; that on Sunday August 8th, 1937, he was called and given information with reference to someone having entered his barn and taking his wheat; that about 12:00 or 1:00 o'clock, on the afternoon of said date, he went to the granary for the purpose of making an investigation, and found that the granary had been broken into. He noticed where a truck had been backed up to the door and "when he opened the door he found a piece of tin nailed on one of the door boards, and a hole cut out, and a piece of tin slipped in to keep the wheat from running out"; that the door to the granary was closed but not locked; and that at the time that he left there on Sunday afternoon, August 8th, 1937, he left the board with the tin attached inside of the granary. He identified this board at the time of the trial, as being the board which was taken from defendant's truck by the sheriff on Sunday night, August 8th, 1937, at the time of his arrest. He notified Mr. Northcutt, the Sheriff of Grant County, and he came to his home just about dark on August 8th, 1937, and in company with the sheriff they went to the home of Mr. Kuykendall, who lived in close proximity to the granary, for the purpose of securing his services to watch the granary that night. He could not get him to do so, and they then went to the home of Mr. Zickefoose, a son-in-law of Mr. Kuykendall, and who lived a quarter of a mile east. They arrived there at about 11:00 o'clock at night, and while there, received information from Mr. Kuykendall and his daughter, that a truck was seen to enter his premises where the barn was located, and after staying there for some time had driven away. He and the sheriff went immediately to the granary, and upon investigation found that a truck had backed up to the granary and that a part of the wheat was gone. He also noticed that the board with the tin on it, which he had left there at noon was also gone. He and the sheriff made a careful examination of the tracks, and followed them until they hit the paved highway about two miles west of the granary. They went on two miles further west and defendant was apprehended driving a truck loaded with wheat, and on top of the wheat was found the board and tin as heretofore described. Defendant was arrested and charged as before indicated. The tires taken from his truck were introduced in evidence, and it showed that the tracks at the granary, and a place where he went into a ditch at the side of the road were very similar. The defendant stated at the time of his arrest, according to the evidence of Mr. Halcomb and Sheriff Northcutt, that he secured the wheat which was in his possession "from my uncle down by El Reno."

Other witnesses testified to corroborating facts which it is unnecessary to give.

The defendant, testifying in his own behalf, stated that he had planted about 300 acres of wheat during the season of 1936-1937; that the hail had ruined part of it but he had harvested about one half of it; that on Saturday, August 7th, 1937, about noon he had loaded his Ford V-8 truck with wheat for the purpose of taking it to Enid in Garfield County, and about 70 miles distance, where he had made arrangements with a party working at an elevator and whose name he did not know to exchange it for seed wheat. He arrived at Enid late Saturday afternoon, August 7th, 1937, and could not find the party with whom he had made arrangements to exchange the wheat, and after staying there for about two hours started back toward his home with his original load of wheat; that his truck developed engine trouble and he stayed all night at the side of the road just north of Enid; and worked on his car the next day, and with the assistance of others, whose names he could not give, he finally got the engine fixed and was coming home Sunday night when he was arrested, and that the wheat which he had on his truck was his own wheat, and the same wheat, he had taken to Enid for the purpose of exchange. His explanation of the possession of the board and tin attached thereto, as heretofore stated, was, that he had stopped at an abandoned filling station just before he was arrested, and seeing this board lying on the ground had picked it up and thrown it on his truck. One witness testified for the defendant that he helped him load the wheat on his truck about noon Saturday. Other witnesses testified to his having planted wheat during the season 1936-1937, and to having seen him combining a part of the same during the year.

The state, on rebuttal, offered two witnesses who testified to selling the defendant gasoline in and near the small towns of Amorita and Byron, Alfalfa County, Saturday and Sunday evenings, August 7th and 8th, 1937. This evidence was for the purpose of rebutting the fact that defendant had gone to Enid at 1:00 p. m., August 7th, and for the purpose of showing that he was in Alfalfa County at that time. Defendant denied this testimony.

From the above statement it will readily be seen that there was a conflict in the evidence and this conflict was passed upon by the jury against the defendant. This court has recently passed upon three cases which we think are decisive of this question. They are: Jim Hart v. State, 57 Okl.Cr. 372, 48 P.2d 337, John Hart v. State, 61 Okl.Cr. 224, 67 P.2d 66, and Adams v. State, 61 Okl.Cr. 5, 65 P.2d 420. In the case of Jim Hart v. State, supra, it is said (page 338):

"At the close of the evidence, there was a motion for a directed verdict of acquittal for the reason that the evidence was insufficient to warrant a conviction.

It is insisted that there was no proper or sufficient evidence connecting this defendant with the burglary or taking of the corn. We think this contention is without substantial merit.

It has been held by this court, following the rule recognized by the courts generally, that mere possession of property recently stolen is not sufficient to convict the possessor of a larceny of it. Shaw v. State, 13 Okl.Cr. 511, 165 P. 617; Graham v. State, 12 Okl.Cr. 84, 152 P. 136. When, however, this fact is supplemented by other facts inconsistent with the idea that the possession is honest, it then becomes a question of fact for the jury to determine.

Where the charge is burglary, if property taken from the owner is soon thereafter found in possession of the person charged with the burglarious entry, proof of this fact, together with circumstances showing guilty conduct, is presumptive evidence, not only of the larceny, but also that he made use of the means by which the property was taken from the owner.

Burglary is one degree removed from larceny; but when the facts in evidence warrant the finding of the larceny, and the surrounding circumstances are such as to show that the larceny could not have been committed without the burglarious entry, the evidence is sufficient to warrant the finding of the burglary also.

In order to establish defendant's guilt, it was not necessary that any of the witnesses should have seen him or his codefendants in the vicinity of the warehouse about the time the burglary was committed. It rarely happens that perpetrators of an offense, committed in the manner here proven, can be shown by witnesses who saw and recognized the defendants in the act, and resort must therefore ordinarily be had to circumstantial evidence.

The jury evidently did not believe the explanation made by defendant as to how he came into possession of the stolen...