Kilpatrick v. State, A-11050

• Decision Date: 04 January 1950
• Docket Number: No. A-11050,A-11050
• Citation: 90 Okla.Crim. 276,213 P.2d 584
• Parties: KILPATRICK v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 584

213 P.2d 584

90 Okla.Crim. 276

KILPATRICK v. STATE.

No. A-11050.

Criminal Court of Appeals of Oklahoma.

Jan. 4, 1950.

Syllabus by the Court.

1. Only those allegations in an indictment or information which involve the guilt of a defendant are to be proved beyond a reasonable doubt. The venue of an offense does not come within this class, but there must be some proof of venue.

2. Venue may be proved by circumstantial evidence.

3. Where the accused desires to challenge the venue, he should do so by a request for an instructed verdict because of an insufficient proof of venue, in order that the trial court might determine this issue.

4. In prosecution for larceny, it is not necessary that the complaining witness expressly testify that the property alleged to have been stolen was taken without his knowledge or consent. It is sufficient if he relates the circumstances from which the lack of consent may reasonably be inferred.

5. Ordinarily a witness may be asked on cross-examination as to any matter which tends to disclose his friendship or bias in favor of either the state or the defendant for the purpose of affecting his credibility as a witness.

6. It is not error to refuse a continuance where the evidence sought to be proved by the absent witness would be merely cumulative.

W. F. Smith, Oklahoma City, attorney for plaintiff in error.

Mac Q. Williamson, Attorney General, Lewis A. Wallace, Asst. Atty. Gen., attorney for defendant in error.

JONES, Presiding Judge.

The defendant, W. E. Kilpatrick, was charged in the County Court of Woodward County, with the crime of petit larceny, was tried to a jury, found guilty, and pursuant to the verdict of the jury was sentenced to serve thirty days in the county jail and pay a fine of $100.00.

The following specification of errors were presented in the brief of defendant:

'1. The State of Oklahoma failed to prove the venue of the alleged crime by direct or circumstantial evidence.

'2. The State of Oklahoma failed to prove the 'corpus delicti.'

'3. The trial court erred in refusing to allow testimony impeaching the prosecution witness.

'4. The trial court abused its judicial discretion in refusing defendant a continuance because of the absence of a material witness.'

As to the first assignment of error, the record does not disclose in the evidence presented on behalf of the state any direct proof of venue, and very little circumstantial evidence, if any, from which venue could be inferred. At the close of the evidence of the state, counsel for defendant demurred to the evidence on the ground that the state had failed to prove that a crime had been committed under the laws of the state of Oklahoma, which was overruled. The defendant then testified, and it is conceded that counsel for defendant in his examination proved that the venue of the prosecution was in Woodward County, by showing the location of the premises involved in the prosecution. At the time judgment and sentence was pronounced, the trial court made a specific finding that the crime was committed in Woodward County.

In the early case of Brunson v. State, 4 Okl. Cr. 467, 111 P. 988, it is stated:

'Only those allegations in an indictment which involve the guilt of a defendant are to be proved beyond a reasonable doubt. The venue of an offense does not come within this class, but there must be some proof of venue.'

Venue does not have to be proved beyond a reasonable doubt and may be proved by circumstantial evidence. However, venue must in some way be proven. Thompson v. State, Okl.Cr.App., 208 P.2d 584. Fannin v. State, 65 Okl.Cr. 447, 88 P.2d 671.

In Edwards v. State, 25 Okl.Cr. 167, 219 P. 427, it is stated:

'The record shows that the trial and conviction were had in Hughes county, in the county court of said county. This court will take judicial notice that the only place of holding the county court in Hughes county is at Holdenville, and that the of this court at the time of the alleged offense and at the time of the trial was Owen H. Rives.

'The testimony shows that the defendant sold one gallon of Choc beer at the Mecca Cafe, and that this Choc beer was an intoxicating liquor, and that the Mecca Cafe was owned and operated by the defendant that one of the witnesses was taken, immediately after the sale of this intoxicating liquor, to the office of the county judge, and that the county attorney and the sheriff were present; that this witness had been arrested for the same offense by T. H. Whaley, city marshal, who took the witness to the office of the county judge. It was shown that this was at the time that Owen Allen was drunk 'down here at the cafe'; also that some negroes were there (at the cafe) in a drunken condition; that there was also an immediate investigation at the 'police court over there.'

'From all of this we conclude that the offense was committed in Holdenville, in Hughes county; that while it would have been better practice to have proved the venue directly, in our opinion the circumstances shown in proof are sufficient to establish the venue. We do not mean to hold that, as to the defendant, there is a presumption that the offense proved was committed within the county where the case was tried, but only that where it is apparent that the court and the jurors have personal knowledge of the places named by the different witnesses, tending to show that the offense was committed within the county, and the defendant desires to challenge the venue, he should do so by a request for an instructed verdict because of insufficient proof of venue, and also as a ground for a new trial, in order that the trial court might determine this issue. No objections to the venue were interposed in this case.'

In the instant case, the prosecuting witness stated that he lived on a particular street, but did not name the city or county. He stated that the slaughterhouse from which the corn was taken was northwest of town just west of the Katy roundhouse, but did not state what town or county.

Dan Potts and Roy Fields each stated that they were policemen in the city of Woodward, and on March 6, 1946, they went to the roundhouse and later to the slaughterhouse of the prosecuting witness, and arrested the defendant at the slaughterhouse, but did not state in what county or city it was located.

R. W. Walker testified that he was jailer of Woodward county on the date in...