Hamilton v. State

• Decision Date: 04 October 1944
• Docket Number: 10320.
• Citation: 152 P.2d 291,79 Okla.Crim. 124
• Parties: HAMILTON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

152 P.2d 291

79 Okla.Crim. 124

HAMILTON v. STATE.

No. 10320.

Court of Criminal Appeals of Oklahoma

October 4, 1944

Syllabus by the Court.

1. A challenge to an individual juror must be taken when the jury is full, and as soon as one person is removed by challenge another must be put in his place, until the challenges are exhausted or waived. The Court for good cause shown may permit a juror to be challenged after he is sworn to try the cause, but not after the testimony has been partially heard. 22 O.S.1941, § 653.

2. Counsel on voir dire examination should inquire into all matters within his knowledge which might affect the qualification of the jurors, and where this is not done, the trial court may in his discretion refuse to allow a challenge to an individual juror after the jury has been sworn to try the cause. The right to challenge a juror in such an instance is considered to be waived.

3. The statute, 22 O.S.1941 § 653, providing that trial court for good cause shown may permit a juror to be challenged after he is sworn to try the cause, applies only to individual jurors who were disqualified, but whose disqualification was not brought out on voir dire examination, but only became known after the jury had been sworn to try the cause and before any of the testimony had been taken.

4. Counsel in argument to jury should confine himself to the evidence and any reasonable deductions that may be drawn therefrom.

5. The voir dire examination of a juror does not become evidence in the trial of a defendant accused of crime and is not a matter which the County Attorney should discuss in his argument.

6. Counsel for the State is entitled to have a wide range of discussion and illustration in his argument, but where he makes a statement outside of the record, the strength of the evidence against defendant will be considered and, if the improper argument may have been a factor in determining the verdict of guilty, a new trial will be ordered; or, if an excessive punishment seems to have been given, by reason of such argument, a modification of the sentence will be made.

7. Record examined and evidence found sufficient to support conviction for stealing a mare, but improper argument of County Attorney requires modification of judgment from four years imprisonment in the State Penitentiary to a term of three years imprisonment in the State Penitentiary.

Appeal from District Court, Stephens County; Cham Jones, Judge.

O. E "Steve" Hamilton was convicted of larceny of a mare, and he appeals.

Modified and affirmed.

Brown & Cund and Jerome Sullivan, all of Duncan, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Jess L. Pullen and J. Walker Field, Asst. Attys. Gen., for defendant in error.

JONES Presiding Judge.

The defendant, O. E. "Steve" Hamilton, was convicted of the crime of stealing a horse and sentenced to serve a term of four years in the State Penitentiary.

The sufficiency of the evidence to sustain the conviction is challenged.

W. H Gray testified that he lived a mile and a half east of Duncan; that he missed an iron-gray mare, coming four years old, weighing about 1300 pounds, shortly before Christmas of 1941; that he later found the mare about the middle of February, 1942, near Chickasha; that the mare was worth between $90 and $100, and was taken without his knowledge or consent. The fence was washed out in his pasture in October of 1941. The last time he saw his mare she had gone into the adjoining pasture of Sid Jones, which was about December 16 or 18, 1941.

W. T. Prince (or Price) testified that he was engaged in the trucking business in Duncan; that on the Friday before Christmas, 1941, the defendant hired him to haul a mare for him. Defendant said this mare was three miles south of Duncan, and witness agreed to haul her to town for $5. That when he and defendant got to the place where the mare was supposed to be tied, she was gone; that defendant found the mare south of where she had been tied and they loaded her into the truck and witness hauled her to Duncan, arriving there about dark. The mare was described as iron-gray, heavy-set, with a roached mane. That on the following Monday, defendant came to him and hired him to haul the mare to Chickasha; that he took the mare on that date to the sales barn at Chickasha, unloaded her, and returned to Duncan. That, later, in a conversation with defendant in Duncan, defendant told him he sold the mare for $75, and paid the witness $5 for taking the mare to Chickasha.

J. W. Surber testified that he ran the Farmer's Auction Sale, at Chickasha; that they had a sale on Monday, December 22, 1941; he identified a check for $73, representing sale of an iron-gray mare, Number 197, payable to Otis Hammons. He, also, identified exhibits "B" and "C"; "B" being the invoice for the iron-gray mare which was the ticket kept by the auctioneer showing the amount of the sale, which in this instance was $75. Exhibit "C" was the check-in slip made at the time the animal was checked in at the sales' barn, which gave the name of the person who checked in the mare as Otis Hammons, and his address as Chickasha, Oklahoma, General Delivery. It showed that the animal had brought the sum of $75, less $2 as commission on the sale. The animal was sold to a Mr. Daniels.

Roy Daniels testified that he lived near Pocasset; that on December 22, 1941, he bought an iron-gray, roached mare, coming four years old, at the Farmer's Auction Sale, at Chickasha, for $75; that he later sold her to Mr. Swindell, at Amber.

H. E. Swindell testified that he bought a four year old iron-gray mare with a roached mane from Mr. Daniels; that, later, Mr. Gray and a Deputy Sheriff from Duncan, came to his place and identified the mare as belonging to Mr. Gray, and she was delivered back to him.

Finis Martin, undersheriff, testified that he arrested the defendant and immediately had a conversation with him in which defendant said that the iron-gray mare which he sold at the Farmer's Auction Sale had been raised by him and he could prove it by his mother; that, later, defendant changed his story and said he bought the mare from Carl Maloney for $57. This was all of the evidence in chief for the State.

Mr. and Mrs. Virgil Braggs each testified that they lived on a farm three miles south and one and one-half miles west of Duncan; that they knew Carl Maloney; that on or about December 16, 1941, Carl Maloney brought an iron-gray mare and put it in the Jones pasture adjoining theirs. That Carl Maloney came later and got the mare on Friday, about two weeks after the mare had been brought there. That the defendant Hamilton was with him, and Maloney asked her for a rope or a bridle or something with which he could lead the mare. That they took the mare away at that time. That it was on Friday before Christmas; these parties were positive about the description of the mare because it broke into their pasture during a large part of the time when it was supposedly in the Jones' pasture.

O. E. Hamilton testified that the first time he saw the mare herein involved was on Friday, the week before Christmas. That Carl Maloney saw him on that date in a recreation parlor in Duncan, and told him he had a mare to sell; that he drove three miles south and one and one-half west of Duncan, and saw the mare at Braggs' house. That he bought her for $60 and hired Bill Price to bring her to town. That, later, he hired Price to haul her to Chickasha, where she was sold through the auction sale, for $75. That he did not give his name as Otis Hammons, but told them his name was Otis Hamilton. He admitted endorsing the check as Otis Hammons, but said he called attention of the man at the bank to the discrepancy when it was cashed. He, also, admitted telling the undersheriff that he had raised the mare, but explained that he said that because he did not think it was any of the undersheriff's business where he had gotten the mare.

Carl Maloney testified in rebuttal for the State that he had previously been convicted of burglary and had plead guilty to three different cases of cow stealing and received a total of seven years therefor, during the present term of court. That he helped load the iron-gray mare which was transported by Mr. Price, in his truck from Duncan to Chickasha, for the defendant Hamilton, on Monday December 22, 1941. That three or four weeks prior to that time, he had been employed by Sid Jones to help move some cattle from a pasture of Jones', located south and west of Duncan, to the town of Duncan. That on the date the cattle were moved, Jones had him take a gray mare from his place east of Duncan, to the place southwest of Duncan, to be used in rounding up the cattle. He described the mare, which he moved for Jones at that time, as being a light gray mare, eight or nine years old, weighing about a thousand pounds, and specifically said that the mare which he took to the Jones' pasture southwest of Duncan was not the mare which was hauled by Price to Chickasha, on December 22, 1941, for the defendant Hamilton. He denied ever selling the mare in controversy to the defendant and disclaimed any interest in her at any time. Other witnesses testified in rebuttal for the State substantiating the story related by Maloney, concerning the removal of Jones' cattle about the first of December, from Jones' place southwest of Duncan into the city of Duncan.

It is argued by the defendant in support of his contention that the evidence is insufficient to support the conviction that, if he is guilty of anything, he is only guilty of receiving stolen...