Lockhart v. State
| Decision Date | 18 April 1914 |
| Parties | LOCKHART v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Evidence stated in the opinion considered, and found insufficient to warrant a conviction.
An instruction whereby the court attempts to state the material elements of the crime charged, but which omits an essential element, is erroneous.
Instructions set out in the opinion held to be erroneous.
Appeal from District Court, McIntosh County; Preslie B. Cole, Judge.
Earnest Lockhart was convicted of the larceny of a domestic animal and appeals. Reversed.
Griffing & Hopper, of Eufaula, and Brook & Brook, of Muskogee, for plaintiff in error.
Chas West, Atty. Gen., and C.J. Davenport, Asst. Atty. Gen., for the State.
Plaintiff in error was tried, convicted, and sentenced to serve a term of two years' imprisonment in the penitentiary on an information which, after alleging venue and time, reads as follows: "Did then and there unlawfully, willfully, and feloniously, by stealth, steal, take, and carry away, without the consent and against the will of the true owner, one two year old red cow, with white spot or spots on face, the personal property of one E. L. Nunnly, with the unlawful and felonious intent then and there of him, the said Earnest Lockhart, to deprive the said E. L. Nunnly thereof, and to convert the same to his own use and benefit contrary to," etc.
The following is a substantial statement of the evidence Prosecuting witness, E. L. Nunnly, testified that he lived near Stidham; that he lost a two year old heifer in June, 1912; that he made search and found her in Mr. Killingsworth's pasture two weeks after he missed her; that defendant gave him another heifer for the stolen heifer; that defendant told witness that he had bought the heifer from an Indian named Jones.
Cross-examined he stated that, when he took defendant's heifer for his heifer, he told defendant he would give him a chance to get the man from whom defendant said he bought the heifer, if defendant would let him have $100 to stand good for his appearance; that defendant said that he did not have any money, but would let him have two cows to "stand good"; that under the agreement prosecuting witness was to hold the two cows until the last of July; that after that defendant came to him and said he could not find the Indian Jones, and wanted the two cows back; that he refused to give defendant the cows, and defendant replevined them, and he then swore to the complaint.
Walter White testified that he lived about a mile from the prosecuting witness, and the alleged stolen heifer ranged with his cattle; that on or about the 10th or 13th of June, about midday, he was sitting on the porch of his house and saw defendant pass and ride up to the cattle on the prairie and drive one of them off; that Mr. Nunnly's heifer did not come up with his cattle that night.
Davis Killingsworth testified that in June he bought five head of cattle from defendant; that he paid $14 for the heifer; that Mr. Nunnly shortly afterwards claimed the heifer, and he was present when defendant offered to give Nunnly another heifer for the alleged stolen heifer, and Nunnly consented.
At the close of the state's evidence, the defendant entered a demurrer to the evidence, which was overruled, and exception reserved.
Defendant Earnest Lockhart, testified that he had lived at Stidham for about six years; was a farmer, and occasionally buys and sells cattle; that on the 12th day of June he bought two cows from Mr. McElroy, and the next day bought four from Mr. Rumsey, and on the 13th day of June he met an Indian driving this heifer and a cow along the road between Stidham and Lenna, and offered him $35 for the two; that the Indian said he would take $30 for the cow and $12 for the heifer, and he bought the heifer and drove it home, passing witness White's place; that he tied the heifer by the side of the road in a grass patch, and a day or two later he sold the cattle he had bought to Mr. Killingsworth; that shortly afterwards Mr. Killingsworth told him that Nunnly was over and claimed the heifer; that he then went to Mr. Nunnly and asked him if he claimed the heifer, and he said he did, and he told him, if it was his heifer, he could have her; that he loaned Mr. Nunnly a horse, and they rode together over to Killingsworth; that while they were...
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