Guthrey v. State, A-13119

• Decision Date: 12 September 1962
• Docket Number: No. A-13119,A-13119
• Citation: 374 P.2d 925
• Parties: Vernon R. GUTHREY, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 925

374 P.2d 925

Vernon R. GUTHREY, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-13119.

Court of Criminal Appeals of Oklahoma.

Sept. 12, 1962.

Syllabus by the Court

1. Only those questions which were raised in trial court, and on which adverse rulings were made and exceptions taken, and which were then incorporated in motion for new trial and assigned as error in petition in error, will be considered on appeal, but jurisdictional questions may be raised at any time.

2. In robbery prosecution, a taking of personal property may be proved by circumstantial evidence.

3. Unless evidence of identification and participation can be strictured as inherently improbable or incredible as matter of law, finding of trial court or jury cannot be disturbed, and a reviewing tribunal cannot substitute its judgment for that of lower court.

4. The credibility of the witnesses and the weight and value to be given their evidence is for the determination of the jury, and where the evidence and the reasonable and logical inferences and deductions to be drawn from it are sufficient to convince the jury beyond a reasonable doubt of the guilty of the defendant, Court of Criminal Appeals will not disturb the verdict for insufficiency of the evidence.

Appeal from the District Court of Garvin County; Elvin J. Brown, Judge.

Vernon R. Guthrey was convicted of the crime of grand larceny, and appeals. Affirmed.

Jack H. Coleman, Oklahoma City, for plaintiff in error.

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

BRETT, Judge.

This is an appeal by Vernon R. Guthrey, plaintiff in error, defendant below, from a conviction for grand larceny. He was charged by information in the district court of Garvin County, Oklahoma with the larceny of a doctor's medicine bag from one Dr. Ryan's parked automobile, the bag and contents being of the aggregate value of $185. The bag contained, among other things, blood pressure-taking instruments, a stethoscope, and drugs, such as demarol, morphine tables, a vial of laxative, codeine tablets, hypodermic needles and syringes. The crime was allegedly committed on January 5, 1961 in Lindsay, Oklahoma, in the aforesaid county. Defendant was tried by a jury, convicted and his punishment fixed at one year in the penitentiary. Judgment and sentence was entered accordingly, from which this appeal has been perfected.

It appears that the factual situation from which this prosecution arises is, briefly as follows: Dr. Ryan, a practicing physician of Lindsay, Oklahoma, parked his automobile on January 5, 1961 back of his clinic, leaving in the unlocked automobile his doctor's bag and its contents as hereinbefore substantially enumerated.

Another automobile, a Corvair, with the front end buckled, and occupied by four boys, as seen by four eyewitnesses, hurriedly entered the parking area, pulling up along side of the doctor's car. From the Corvair one of the boys jumped out, opened the doctor's car door and removed the doctor's bag, taking it with him into the back seat of the Corvair, which then hurriedly sped away.

The Corvair, with the battered front end and four boys as its occupants, was seen by a local police officer at a stop light as it was leaving town. The officer said he noticed two things--that the front end was bent up, and that it was a strange car. Shortly after he met the car he got general information on his radio about the theft, and he went to Dr. Ryan's office, got the details concerning same and picked up Buck Bell, another policeman, and they took out after the car on the highway. Thirty minutes later they spotted the boys and after a chase, getting their car up to about 80 miles an hour, and about three miles east of Alex, Oklahoma, they overtook the boys. It was the same car the officer met leaving town with four boys its occupants. During the chase, the arm of one of the boys was seen throwing something out of the car. When the boys were overtaken they were arrested and searched. No contraband was found on them. Their automobile was returned to Lindsay, and a vial that had contained narcotics was discovered by Dr. Ryan under the back seat of the Corvair, and the doctor identified the vial as one that came from his medical bag. A syringe and needles and three vials of narcotics were found along the highway where it was observed one of the occupants of the Corvair threw something out of the right-hand side of the car. Dr. Ryan's medical bag was found on the highway between Bradley and Alex, and was identified by him.

These were the circumstances upon which the state relied for conviction. The defendant offered no evidence in his defense. The facts as hereinbefore related stand uncontradicted.

The defendant raises but one proposition set forth in his motion for new trial. The other propositions raised were not presented in said motion, and are, therefore, not before us for consideration. 'Only * * * questions which were raised in the trial court and an adverse ruling thereon, exceptions taken, and then incorporated in a motion for new trial, and assigned as error in the petition in error, will be considered on appeal, except that jurisdictional questions may be raised at any step of the case.' Staley v. State, 97 Okl.Cr. 114, 259 P.2d 545.

The remaining proposition properly preserved and raised herein is...