McMurtry v. State
| Decision Date | 06 June 1945 |
| Docket Number | A-10510. |
| Citation | 159 P.2d 567,81 Okla.Crim. 24 |
| Parties | McMURTRY v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appeal from District Court, Tulsa County; S. J. Clendinning, Judge.
Edward McMurtry was convicted of the crime of robbery with firearms sentenced to serve a term of fifteen years in the State penitentiary, and appeals.
Affirmed.
Syllabus by the Court.
1. The rule has long been established that this court as an appellate court will not weigh conflicting and contradictory evidence which has been passed on by the jury and trial court, but will interfere only where there is an entire absence of testimony upon some material issue, or that the evidence so clearly preponderates in favor of the defendant as to suggest the probability that the verdict was the result of misapprehension or partiality.
2. A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
This does not mean a separate and complete proof of a crime, but only that there should be some evidence of material facts in addition to the testimony of the accomplice tending to connect the defendant with the commission of the crime charged.
Held, that the evidence is sufficient to corroborate the testimony of the accomplice.
3. Venue, like any other fact, may be established by direct testimony, by circumstantial evidence, or by both. Held that venue was properly proven.
Harold McArthur, of Tulsa, for plaintiff in error.
Randell S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.
Defendant Edward McMurtry, was charged in the District Court of Tulsa County with the crime of robbery with firearms, was tried, convicted and sentenced to serve a term of fifteen years in the State penitentiary, and has appealed.
Defendant, being unable to make bond pending his appeal, is now confined in the State penitentiary at McAlester, and for this reason his case has been advanced.
The only contentions of defendant for reversal of this case are that the testimony of the accomplice is not corroborated in the manner prescribed by law; and that the venue was not properly proven.
This case is the outgrowth of the robbery of V. R. Dick of the sum of $1,200, in Tulsa County, on May 11, 1943. It is necessary to give a short statement of the evidence.
The prosecuting witness, V. R. Dick, lived in Kaw City, Kay County, Oklahoma. He had been in business there, and sold his store in March, 1943, for the sum of $2,400. In the early part of May following, he and his wife went to Muskogee to visit, and with the view of buying some kind of business. On this trip, the witness carried $1,200 of the money received from the sale of his store. This money was in one hundred dollar bills, and was carried in a truss strapped about his body. The other $1,200 was left in Kaw City. The defendant, Edward McMurtry, was a cousin of the prosecuting witness, and the witness and his wife spent the night at the McMurtry home in Muskogee. Witness told defendant he was interested in buying some kind of business, and defendant suggested a 'beer joint,' and took him to see it. After looking at this business, witness told defendant he was not interested in buying it. During these negotiations, defendant asked the prosecuting witness if he had the cash to purchase a business. He was insistent about knowing this, and Mr. Dick finally showed him the money, and how he carried it in the truss.
After spending the night in Muskogee, the prosecuting witness and his wife left, going to Tulsa, and the defendant accompanied them. They spent the night in Tulsa, at the home of Mr. Dick's parents, and the next day returned to Kaw City, taking the defendant with them. While in Tulsa the prosecuting witness looked at a shoe shop, and discussed the purchase of the same with the defendant. They made another trip to Tulsa on Friday of that week, and prosecuting witness told the defendant he was going back to Tulsa the first of the week to purchase the shoe shop.
On May 10, which was Monday, the prosecuting witness and his wife returned to Tulsa, taking the entire $2,400 with them, $1,200 in the truss, and the other $1,200 in a bill-fold. They went to the home of Mr. Dick's parents in West Tulsa. On the morning of May 11, 1943, prosecuting witness and his wife got in their car to go down town for the purpose of closing the deal and purchasing the shoe shop. Witness backed his car out in the alley, and drove down the alley to the street, and as they slowed down to enter the street some man, whom they did not know, jumped on the side of the car, which was a sedan, opened the back door and got in, saying, 'I want to ride to town with you.' The prosecuting witness looked around, and the man was pointing a pistol at him, and told him to 'just keep this rolling like the way you are going and nobody will get hurt.' The man told him, He directed them where to drive, and they drove out of the city, and drove to a bargate, and then on about a mile and a quarter where the man ordered witness to stop the car. During this drive the wife of prosecuting witness asked the man if it was money that he wanted, and that if it was, she had $35 or $40 in her purse she would give to him. He answered, 'Lady, I don't want your money.'
When the car was stopped, the party ordered prosecuting witness out of the car, and told his wife to 'stay there in the car and not to try to do anything.' He then directed the prosecuting witness to a place in the timber about one hundred yards from the car and out of sight of Mrs. Dick, and told him to, 'Get up on that rock and take your clothes off.' Witness removed his clothes, but kept the truss on, and the man said, 'Get that belt off, I want that.' He then told witness to 'go up there and sit down by that tree,' and 'don't you look around or turn your head for forty-five minutes, or I will kill you.' He then told the witness, 'I am going to take your clothes and hide them--you will find them but it will take you a long time to do that.'
Prosecuting witness sat by the tree five or ten minutes, and when he heard no sound, he looked around and not seeing anyone, got up and went to a house, told the lady what had happened, and called the officers. He later recovered his truss from the officers, but the money was gone. Thereafter he recovered $416 from Earl Allen and Junior Cole, two of the parties to the robbery.
When ordered out of the automobile, witness had slipped the bill-fold containing the $1200 out of his hip pocket and his wife slipped it up her coat sleeve, and later hid it in the car. After he had stopped the car, and before being compelled to get out, prosecuting witness saw an automobile parked on a hill about three-quarters of a mile away, and while he was calling the officers he saw the car leave the place where it was parked. He could not testify that the party who robbed him was in the car, because of the distance.
Mrs. Julia Dick, the wife of the prosecuting witness, fully corroborated the testimony of her husband, and stated that the robber forced her husband to leave the car at the point of a gun, and took him into the timber where she could not see them. She remained in the car. From where she was, she could see an automobile parked on a hill-side about half a mile distant. The robber, who was later identified as Junior Cole, came back to the automobile and told her that he only got about sixty cents from Mr. Dick, and said, 'Now I want your money.' She gave him the money in her purse, about $45. He told her not to look at him, and not to even look around when he left, but after he had been gone a few minutes she turned around, and saw him going west, in the direction of the parked car. She saw the car move in about the time it would take for one to walk from where she was to the parked car. The car came toward where she was sitting in the car to the intersection, and turned north toward Ponca City and Kaw City. When asked how near to her the car came, her answer was, 'Oh, I would say three blocks, anyway.' She testified that it was a 'gray looking car.' She remained in the car until her husband returned with the deputy sheriff. The keys to the car had been taken by the robber.
Earl Allen, who was serving a term in the penitentiary for his participation in the robbery, testified as a witness for the State. He being an accomplice, it is contended that his testimony was not corroborated in the manner prescribed by law.
Allen testified that he lived near Kaw City in May, 1943, and was running a truck farm. That in the early part of May, and the day before the robbery of Mr. Dick, he was driving from his home to Ponca City, and met the defendant, Edward McMurtry and Junior Cole, walking...
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...in favor of the defendant as to suggest the probability that the verdict was the result of misapprehension or partiality, McMurtry v. State, Okl.Cr., 159 P.2d 567; v. State, Okl.Cr., 157 P.2d 758; Salisbury v. State, Okl.Cr., 156 P.2d 149. For numerous other authorities, see, Criminal Law, ......