Jones v. State

• Decision Date: 03 November 1976
• Docket Number: No. F--76--458,F--76--458
• Citation: 557 P.2d 447
• Parties: Bobby Ray JONES, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 447

557 P.2d 447

Bobby Ray JONES, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--76--458.

Court of Criminal Appeals of Oklahoma.

Nov. 3, 1976.

An appeal from the District Court, McIntosh County; Marshall Warren, judge.

Bobby Ray Jones was convicted of the offense of Receiving Stolen Property; was sentenced to serve five (5) years' imprisonment, and appeals. AFFIRMED with Instructions.

Francis M. Pickel, Jr., Oklahoma City, for appellant.

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., for appellee.

OPINION

BUSSEY, Judge:

Appellant, Bobby Ray Jones, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, McIntosh County, Case No. F--75--51, for the offense of Receiving Stolen Property in violation of 21 O.S.1971, § 1713. His punishment was fixed at five (5) years' imprisonment and from said judgment and sentence a timely appeal has been perfected to this Court.

At the trial, Hollis Dailey testified he was a cabinet maker. On April 10, 1975, a sander, saw and vibrator sander were taken from his shop located in Eufaula, Oklahoma. He then identified State's Exhibits Nos. 1, 2, and 3 as being the sander, saw and vibrator sander taken without his permission from his shop on April 10, 1975. Witness Dailey finally testified that the next time he saw these tools was at the Sheriff's office on the following Saturday night.

Glen Parratt testified he was employed as a District Court reporter for the State of Oklahoma and lived in Shawnee, Oklahoma. He then identified State's Exhibit No. 4, as being a C.B. radio taken from his boat without his permission.

Norman Rice testified he was 22 years-old and lived in Eufaula, Oklahoma. During the month of April, 1975, he broke into Mr. Dailey's Cabinet Shop. He then identified State's Exhibit Nos. 1, 2 and 3, as being two sanders and a Skil saw he took without permission from the cabinet shop. Witness Rice further testified that he sold State's Exhibits Nos. 1, 2, and 3 to the defendant receiving $30.00. A person named 'Stoney' received $20.00 and he kept $10.00 for himself. He was convicted, upon a plea of guilty, to the charge of Burglary in the 2nd degree and was presently on parole.

Stoney McGuire testified that he was acquainted with Norman Rice. In April of 1975, he, at Rice's request, met in front of a furniture store on Main Street in Eufaula, Oklahoma. Rice showed him two sanders and an electric saw. Rice stated that he found the items under a blue car parked in the alley. Rice asked witness McGuire if he wanted to buy the items; McGuire stated he only had $10.00. McGuire gave Rice $10.00 and told him (Rice) he would give him $10.00 more after he sold the items. McGuire then walked to Jolly Bob's (defendant's business) and asked the defendant if he would loan him some money on the items. Witness McGuire took the Skill saw and one sander in the front and the defendant let Norman Rice in the back door with the other sander. After the defendant checked the articles he gave them $30.00. McGuire told the defendant that he would try to get the items back, however, there was neither a set time nor an interest rate set. Finally Witness McGuire testified the defendant did not inquire as to where he obtained the items.

Leo Williams testified he was the Sheriff of McIntosh County in the month of April, 1975. On April 12, 1975, he was called to his office as a person had been picked up carrying a tool box and was going toward the defendant's place of business. The person was interviewed by Sheriff Williams and the Assistant District Attorney, Allen. Thereafter, Sheriff Williams and Mr. Allen proceeded to the defendant's place of business. Mr. Allen informed the defendant that they were looking for some saws and a sander that had been brought into the place of business and wanted to look around. The defendant stated that they could go ahead and look around. Mr. Allen advised the defendant that they had a waiver and wanted to know if the defendant would sign the waiver so they could search the building. The defendant agreed to sign the waiver and did sign it. Sheriff Williams and Mr. Allen then looked around until they came to a locked door. The defendant was asked if he had a key and he replied that he did not. The defendant then went downstairs and Sheriff Williams and Mr. Allen took the hinges off the locked door and observed the saw and sander inside. They then replaced the door and went downstairs and arrested the defendant and advised him of his Constitutional rights. They then asked the defendant for his keys, which he gave to them. One of the keys opened the door and State's Exhibits Nos. 1, 2, and 3 were removed from the room.

Larry Allen testified he was employed as an Assistant District Attorney for McIntosh County. On April 12, 1975, he and Sheriff Williams received information that certain tools stolen from Hollis Dailey's carpenter shop were in the defendant's place of business. He and the Sheriff, at approximately 11:30 p.m., went to the defendant's place of business. Witness Allen advised the defendant that they had reason to believe that certain items were stolen from Hollis Dailey and that they would like to look around for them. The defendant stated 'Why, sure, go ahead and look.' Allen then advised the defendant he had a waiver of demand for search warrant and it would be better if he (defendant) signed it. The defendant then signed the waiver. Allen then advised the defendant that he had a right to force them to get a search warrant but since he signed the waiver he waived that right. The remainder of Witness Allen's testimony was substantially the same as Sheriff Williams.

The State then rested.

The defendant then took the stand and testified that Sheriff Williams and Assistant District Attorney Allen came to his place of business and that Allen advised him that he (Allen) wanted to search the premises. Defendant stated that it was all right with him. Allen then produced a piece of paper from the inside of his coat pocket, unfolded it and told him that he would have to sign it and he did. The defendant testified that he did not know what it was, and that he never read it. Thereafter, the Sheriff and Allen proceeded to look around his place of business. When they came to the locked door, he was asked what was in the room. The defendant described various tools that belonged to him, paint jars and other odds and ends. The defendant then testified that two of the items entered into evidence were in the locked room, but one, the small sander, was still below the counter. The defendant further testified that he had loaned $30.00 on the items. He had previously loaned money to one of the boys.

Several months prior to this, he had loaned $5.00 on a C.B. radio and had inquired if the radio was 'hot' and was told it was not. He finally testified that he had pawn slips on all the items he took and loaned money on.

On cross-examination, the defendant testified that his curiosity was not raised when a 14 year-old kid came in his place of business and wanted to pawn some power tools. Finally on cross-examination he denied that one of the boys was let in the back door, both had come in the front door.

The defendant then rested.

The defendant's first assignment of error asserts that the trial court erred in overruling his demurrer at the preliminary hearing. This Court has previously held that the evidence at the preliminary hearing is sufficient to bind the accused over if the State shows that a crime...