Linde v. State
| Decision Date | 26 March 1937 |
| Docket Number | A-9138. |
| Parties | LINDE v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. One who takes property under fair color of claim or title and in the honest belief of ownership and of a right to its possession is not guilty of larceny even though he is mistaken as in such case the felonious intent is lacking.
2. Evidence examined and found insufficient to show criminal intent to commit larceny.
3. The defendant has a right to have a clear and affirmative instruction given to the jury applicable to his testimony based upon the hypothesis that it is true, when such testimony effects a material issue in the case, and a refusal to give such instruction when requested is error.
Appeal from District Court, Payne County; Henry W. Hoel, Judge.
A. A Linde was convicted of larceny of domestic fowls, and he appeals.
Reversed and remanded.
L. H Woodyard and John W. Whipple, both of Stillwater, for plaintiff in error.
Mac Q Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Guy L. Horton, Co. Atty., of Stillwater, for the State.
An information was filed in the district court of Payne county against the defendant, charging him with the crime of larceny of 45 turkeys. He was tried, convicted, and the court assessed his punishment at fifteen months in the penitentiary. From this judgment and sentence, he has appealed to this court.
Among the errors assigned are: First. The evidence was not sufficient to sustain the conviction; second, that the court erred in refusing to give certain requested instructions.
These errors may be considered together. It is contended by the defendant that the evidence failed to show a criminal intent on his part and that the turkeys were taken by him in an honest belief that they were his own property and that he still believes them so to be.
After carefully reading the record in this case, we are of the same belief. The evidence showed that the defendant was a farmer, living 9 miles northwest of Stillwater, in Payne county; that he was farming 320 acres of land, and had resided there two years; that he had been a resident of Payne county for twenty-seven years; that he was married and had four children; that at the time this information was filed against him he was also extensively engaged in raising turkeys; that during the year 1935, he had raised approximately 400; that some time prior to the date charged in the information, dogs or wolves had scattered and separated them and he lost a large bunch of turkeys which he had raised; that on Monday, August 12, 1935, the same being the day prior to the alleged offense, a neighbor woman called the defendant over the telephone and told him that there were some stray turkeys there, and asked him to come over and see if they were the ones he had lost; that in the forenoon of that day he and one of his sons went in a car with a neighbor to see if he could identify the turkeys; that upon seeing the son of the woman who had called him in a near-by pasture, he got out of the car and was informed by the boy that the turkeys were over at a neighbor's place by the name of Mrs. Burke; that he then went over there and found a bronze turkey hen and, as they say, 49 young bronze turkeys, being the same color of the ones he had lost; that upon he and his son identifying the turkey hen and the smaller turkeys as being the ones that he had lost, they drove them home along the public highway; that upon reaching home they were placed with their turkeys and he and his family testified that there was no fighting among them as was usual when strange turkeys are mixed; and that they knew where to go for feed and water.
On the Friday following, the prosecuting witness, a neighbor lady, who had lost some turkeys, came to the home of defendant. She informed the defendant of her loss and asked him to let her see the turkeys he had driven from Mrs. Burke's. The defendant showed them to her and told her after bringing them home he and the boys had marked them by cutting off one of the toes so that he would know them if they strayed away again. She made no examination of the turkeys at this time, but returned the next evening with one of her neighbors and asked to see the turkeys again. The defendant assisted in the catching of the turkeys so that she and her neighbor might examine them. There was nothing done by the defendant in any way to conceal the turkeys or to refuse to give her any assistance he could in the examination of them. She left without saying anything as to whether she identified the turkeys as hers, nor did she in any way make any demand of the defendant that he should turn them over to her. The first the defendant knew that she claimed they were her turkeys was when he was arrested by reason of a warrant sworn out by her, charging him with the larceny of her turkeys.
There was evidence that the turkey hen that she lost had a chain around her leg and a ring around her neck. Defendant testified and also his son and...
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State v. Mills
...1415, 51 Cal.Rptr.3d 263, 272 (2006) ; People v. Romo , 220 Cal.App.3d 514, 269 Cal.Rptr. 440, 441-42 (1990) ; Linde v. State , 61 Okla.Crim. 136, 66 P.2d 527, 528-29 (1937) ; 50 Am. Jur. 2d Larceny § 35.6 If supported by the evidentiary record, a defendant was entitled to a jury instructio......
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Stanley v. State
...his, the taker's own use, which specific proof is not necessary to support a conviction under the general larceny statute." In Linde v. State, 66 P.2d 527, 528, this court discussing the testimony in the body of the opinion said: "The taking of the turkeys was in the daytime, with knowledge......