Oakley v. State, 30177

• Decision Date: 21 January 1959
• Docket Number: No. 30177,30177
• Citation: 323 S.W.2d 43,167 Tex.Crim. 630
• Parties: Jim OAKLEY, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 43

323 S.W.2d 43

167 Tex.Crim. 630

Jim OAKLEY, Appellant, v. STATE of Texas, Appellee.

No. 30177.

Court of Criminal Appeals of Texas.

Jan. 21, 1959.

Rehearing Denied March 4, 1959.

On Second Motion for Rehearing April 8, 1959.

Allen Harp, Childress, for appellant.

Simpson, Adkins, Fullingim & Hankins, Amarillo, Robert C. Benavides, Dallas, amici curiae.

John T. Forbis, Dist. Atty., Childress, Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The conviction is for the theft of seed of the value of more than $50; the punishment, eight years.

Ernest L. Kilgore testified that during his absence from home on April 7, 1957, some one without his consent took from his garage two sacks containing a total of 110 pounds of sorghum almum seed belonging to him. He further testified that he had told the appellant, who lived about 'a third or a half mile' from him, about the seed being in his garage on the day before the night they were missed. Joe D. Rash testified that appellant brought the 110 pounds of sorghum almum seed in two sacks to his house in the night; that he purchased the seed, and they went to the agricultural office so he could sign papers so the government would pay for part of the seed. Testimony was offered that a certificate in the agricultural office, dated April 8, 1957, showing the sale of 110 pounds of sorghum almum seed by Jim Oakley to Joe D. Rash bore the signature of Jim Oakley, who is the same person as the appellant herein. Rash further testified that appellant remained at his home two or three days and the check introduced in evidence from Rash to appellant in payment of the seed shows that it was dated April 10, 1957, but Rash was uncertain as to the day he gave the check with reference to the day appellant arrived or left. Shortly thereafter the sheriff asked him about the seed and he delivered the two sacks to him. Both the purchaser of the seed from the appellant and the sheriff identified the two sacks of seed at the trial. The witness Kilgore while testifying identified certain marks and wire on the sacks and stated that they were the same sacks and contained about the same quantity of seed as taken from his garage.

The proof shows that on April 7, 1957, the 110 pounds of sorghum almum seed had a market value of three dollars per pound.

Appellant did not testify but recalled two of the state's witnesses whose testimony raised no affirmative defense.

The evidence is sufficient to sustain the conviction.

Appellant contends that the indictment is insufficient because it fails to describe the seed that he is charged with taking and appropriating to his own use.

The indictment alleges that the appellant did 'fraudulently take seed of the value in excess of $50.'

No motion to quash the indictment is shown in the record.

The complaint of the failure to describe the seed alleged in the indictment is not of such nature as would require a reversal when raised for the first time on appeal. Donahoo v. State, 162 Tex.Cr.R. 388, 285 S.W.2d 952; Crawford v. State, Tex.Cr.R., 305 S.W.2d 362; Johnson v. State, Tex.Cr.R., 310 S.W.2d 70.

In his motion for a new trial appellant for the first time complains of the court's action in recalling a jury panel which had been previously called to try the case; and in arbitrarily excusing fifteen members of the panel from jury service.

In support of the motion it was stipulated that appellant had not exhausted his peremptory challenges when the jury was completed.

There is no showing that appellant was required to take any objectionable juror.

Appellant's objection to the jury panel for the first time after conviction comes too late. He cannot take his chances of a jury reaching a verdict satisfactory to him and later complain if the verdict offends. No error is shown in the court's action in securing the jury. Knauf v. State, 108 Tex.Cr.R. 455, 1 S.W.2d 619.

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