Logan v. State, A-11559

• Decision Date: 09 January 1952
• Docket Number: No. A-11559,A-11559
• Citation: 95 Okla.Crim. 76,239 P.2d 1044
• Parties: LOGAN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1044

239 P.2d 1044

95 Okla.Crim. 76

LOGAN v. STATE.

No. A-11559.

Criminal Court of Appeals of Oklahoma.

Jan. 9, 1952.

Syllabus by the Court.

1. Before a conviction may be sustained for the crime of burglary in the first degree all of the elements of the offense must be proved by the state, including the intent to commit a crime in the dwelling house, but this intent may be proved by circumstantial evidence.

2. The question as to whether one intended to commit a crime in a dwelling house is determined by the intent of the individual at the time the unlawful entry was made. It is not necessary that a crime actually be committed in the dwelling house, as a person who had the intent to commit rape might change his mind when confronted by a determined and outraged woman.

3. As an exception to the general rule that evidence of other offenses is inadmissible for the purpose of showing the accused is guilty of the particular offense charged against him, evidence of other offenses similar to the offense charged against the accused, which were committed by him within the space of one hour of the time the accused is alleged to have committed the crime of burglary, was admissible when such evidence shows the intent of the individual in the commission of the offense charged against him.

4. The character or reputation of the defendant may not be attacked by the state unless it is first placed in issue by the defendant offering evidence of his good character or reputation.

5. For the purpose of affecting the credibility of defendant as a witness he may be asked whether he has been convicted of a crime, but he may not be interrogated about arrests or charges where there was no conviction.

6. Counsel for the accused may not invite error in their examination of the states' witnesses and then complain of the error which was made.

Wendell G. Stockton, Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., for defendant in error.

JONES, Judge.

The defendant, Dan Deo Logan, was charged by an information filed in the District Court of Oklahoma County with the crime of burglary in the first degree; was tried; convicted; and pursuant to the verdict of the jury was sentenced to serve seven years in the state penitentiary; and has appealed.

The following propositions are presented in the brief of defendant: 1. The evidence was insufficient to sustain the conviction. 2. The court erred in admitting testimony of other offenses. 3. The court erred in admitting testimony by the officers as to arrests and charges which had previously been made against defendant. 4. The punishment was excessive.

The information charged the defendant with breaking and entering in the night time a certain one-story frame house located at 1601 Southwest 31st street in Oklahoma City, in which house Mrs. Pauline Gates was then and there sleeping at the time of the entry by the defendant, with the intent on the part of the defendant to commit a felony therein.

The proof showed that on the night in question about 9:30 p. m. Mrs. Gates had laid down on the divan in the living room of the house in question. She was awakened by hearing some one step up on the porch. The defendant then opened the door and entered the house and as he did so he turned off the light in the living room and turned on the porch light. Mrs. Gates testified: 'A. I asked him what he was doing, or what he wanted, I don't remember just what I said, only that I wanted to know what he was doing in my home. He was muttering something that I could not understand. It wasn't distinct. He took a step or two toward me and at that moment Mrs. Bowling, across the street, called to me and said: 'Pauline, are you in trouble?', and I said: 'Yes'. At the same moment I was mad, and I told him to get out of there and Mrs. Bowling called and said: 'Do you want me to call the police?', and I said: 'Yes, call the police and call my husband, he is right down at the house.' So, then, he turned and went on down the street, down the hill, on 31st street, toward Brock Park.'

Two days later Mrs. Gates picked the defendant from a group of four men at a show up in the police headquarters and identified him as the man who had entered the house on the night in question.

Mrs. Dorothy Bowling testified that she lived just across the street south from Mrs. Gates; that about 9:30 p. m. on June 26, 1950, she observed a man looking in the windows at Mrs. Gates' home, and then saw him standing just off the porch looking in the door. He had a package in his hand which he set down under the south window. The man she saw fitted the general description of the defendant. She saw the man walk up on the porch, reach inside the house and switch off the light in the living room, and switch on the porch light. He then entered the house. She then next observed the man backing out of the house and Mrs. Gates facing him, and Mrs. Gates hollered to her to call the police. The man on the porch grabbed his package and ran down the street, and the witness called the police. The police officers came in a few minutes and she gave them a description of the man.

V. E. Moncrief and Jack Skaggs were two police officers who had been called to the 1600 block on Southwest 34th street to investigate some prowling which had been reported. They were sitting under a large tree with their lights out when they noticed two men running north on 34th street pursuing another man. They then started in pursuit and caught up with the defendant as he ducked between two houses in the middle of the block. The policemen jumped out of their automobile. One of them went around one side of the house, and the other the other side, and they found him lying down in the garden back of the house. The front of his trousers was unzipped. The defendant did not appear to be intoxicated, but he had the smell of alcoholic liquor on the breath. He was running very fast before he was caught.

Hilton Geer testified that he talked to the defendant at the Oklahoma City police station the day after his arrest, in which defendant stated that he remembered being in the house at 1601 Southwest 31st street and being chased away from the house; that he had been drinking and when he was drinking he had an urge to be with women.

The defendant testified that he was not regularly employed but that he had been performing some labor for Jack Reece, cleaning windows, and that for about thirty days prior to the time of his arrest he had been staying at the home of his sister, which was just one block from the house which it is alleged he entered on the night of June 26th. He testified that after getting off work between 4:00 and 5:00 o'clock he commenced drinking beer and later bought a pint of whiskey, which he drank; that he started home with a bag of clothing and some beer in a sack; that he did not remember entering the house of Mrs. Gates at 1601 Southwest 31st street, and if he did so it was by mistake on account of his intoxication and because he thought it was his sister's house; that both houses sit on the corner only one block apart. On cross-examination the defendant denied entering the homes of Mrs. Dennis W. Grady, Mrs. Edna Andrews and Mrs. J. R. Middleton at about the same time on the evening in question as the Gates' house was allegedly entered, which homes were in the immediate vicinity of the Gates' home.

The sister of defendant testified tha she lived at 1644 Southwest 34th street, which is one block from the Gates' house; that the defendant had been residing at her home for about a month prior to the time he was arrested; that the defendant does common ordinary construction labor. On cross-examination she stated her house was a small house consisting of three rooms and a bath and sits at the back of the lot. There is no sidewalk leading up to the house. It has only a small porch on the front.

In rebuttal Mrs. J. R. Middleton testified that she resided at 2104 Southwest 35th street in Oklahoma City; that about 10:15 p. m. she and her two small children were at home and she noticed a man dart back from the front door; that she was scared and picked up the Bible and threw it and said, 'Get out of here', and the man didn't move; that she walked to the front door and laid her head against the screen and saw the man standing there; that she said, 'What do you want?', and he said, 'How about a little fun', and the witness said, 'You had better get from here', and the man said something else about fun and the witness said, 'I am going to call the law'; tha she started to the telephone and the man ran; that the man that she saw was the defendant. On cross-examination she testified that the man didn't act right and she thought he was under the influence of dope.

Mrs. D. W. Grady testified that on June 26, 1950 she lived at 1624 Southwest 35th street in Oklahoma City; that around 10 o'clock she was sitting in the living room reading; that her attention was attracted to a man standing at the screen door looking in at her, which man was the defendant. Her husband was sleeping in the other room; that she jumped up and took about two steps toward the bedroom door and opened the door; that the defendant jumped off of the front porch and ran to the bedroom window; that she said, 'What do you want?', and the defendant said, 'Pull up your dress, please pull up your dress'; that she started shaking her husband, and when he arose up in the bed the man at the window started running down the driveway. They called the police and reported the occurrence.

Mrs. Doyle Andrews testified that she lived at 1620 Southwest 34th street on June 26, 1950; that she had been sitting outside of her house about 10:00 p. m. and got up to go into the house, and saw a man standing at the west side of her house; that she ran into the house and dialed her neighbor across the street, whose name was Roy Thomas; that she got a good look at the man and saw him again about an hour...