Petty v. State

• Decision Date: 30 October 1946
• Docket Number: A-10620.
• Citation: 174 P.2d 274,83 Okla.Crim. 150
• Parties: PETTY v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

174 P.2d 274

83 Okla.Crim. 150

PETTY v. STATE.

No. A-10620.

Court of Criminal Appeals of Oklahoma

October 30, 1946

Appeal from District Court, Stephens County; Cham Jones, Judge.

Elmer Petty was convicted of the crime of burglary and sentenced to serve two years in the state penitentiary, and appeals.

Reversed with direction.

Syllabus by the Court.

While it is well settled that the Criminal Court of Appeals will not reverse a conviction for insufficiency of the evidence if there is any substantial evidence, although circumstantial, from which a reasonable and logical inference of guilt arises, the converse rule is also well settled that it is not only the province but the duty of the court to set aside such a verdict when it is contrary to law and the evidence, or where there is no evidence to support it, or there is a failure to prove some essential matter to establish the offense charged, or where it appears that the verdict was rendered as aresult of passion or prejudice.The performance of this duty on the part of the court is the exercise of legal discretion and judgment as to the sufficiency of the evidence to overcome the legal presumption of innocence to which every one is entitled who is put on trial for an offense.

Jerome Sullivan, of Duncan, for plaintiff in error.

Mac Q Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Hegel Branch, Co. Atty., Stephens County, of Duncan, for defendant in error.

BAREFOOT, Judge.

DefendantElmer Petty, was charged jointly with Lloyd Sheehan, R. D. Mooneyhan and David Jones in the District Court of Stephens County with the crime of burglary; took a severance, was tried, convicted and sentenced to serve a term of two years in the state penitentiary, and has appealed.

The disposition of the cases of the codefendants is as follows:

R. D. Mooneyhan entered a plea of guilty and his punishment was assessed at two years in the state penitentiary.This sentence was suspended during good behavior, conditioned that the defendant join the Army before January 11, 1943.This he did.

David Jones was convicted and sentenced to serve a term of two years in the state penitentiary.His case was appealed to this court, and affirmed on August 1, 1945, Jones v. State, Okl.Cr.App.,161 P.2d 89.

Lloyd Sheedan was tried, convicted and sentenced to two years in the state penitentiary.He appealed to this court, and his case was affirmed on September 18, 1946, Sheehan v. State, Okl.Cr.App.,172 P.2d 809.

The jury fixed the punishment of the defendant in the case at bar at two years in the penitentiary, and recommended a suspended sentence, but the court refused to follow this recommendation.

The only question presented on this appeal is that the evidence is insufficient to sustain the judgment and sentence.Briefs have been filed by both the defendant and the state.Statements with reference to the evidence have been made to a limited extent in the cases involving the codefendants.We shall, therefore, only refer briefly to the evidence as it concerns this defendant.

Defendant was charged jointly with his codefendants with breaking and entering a building belonging to the Ice Service Company in the city of Duncan, and taking six cases of beer.He was a taxi driver in the city of Duncan.His codefendant David Jones worked for him, and drove a truck.Defendant had been acquainted with his other two codefendants for a period of only two weeks.He lived with his wife and three children at the home of his parents in Duncan.On the afternoon of December 22, 1942, defendant was hired by his codefendant Mooneyhan to take him to the Ice Service Company, where Mooneyhan purchased a case of beer, which he took to the Wade Hotel.Defendant later went home to get his supper.His codefendant Jones also took his meals at the home of defendant's parents, and was present.Just as supper was ready to be served, Mooneyhan and Sheehan came to his residence and made arrangements for defendant to take them to the El Rancho Night Club, just south of the city of Duncan.David Jones accompanied them.They went to the night club, and defendant remained in his taxicab.In a short while his codefendants returned to the taxi and had with them four girls, and all of them entered the taxi and they started back to Duncan.One of the girls was taken to her home, and the codefendants Mooneyhan and Sheehan inquired of defendant what he would charge them to just drive them around, and defendant told them $3 an hour.In a short time they directed him to drive to the Ice Service Company, and Mooneyhan went to the side door, but returned without any beer.They then drove around through the park and town for about an hour, and Mooneyhan told defendant to drive back to the beer place, 'there should be somebody there by this time.'Defendant did as directed, and the three codefendants got out of the taxi, defendant remaining in the car.They returned and put some beer in the turtle back of the car.Mooneyhan then told defendant to back up and go out Fifth Street, and as he backed up, he struck some mud and killed his engine.Mooneyhan told defendant to hurry, that he had not paid for the beer, and defendant testified that he immediately turned off the ignition of the car, and told Mooneyhan he was not moving until the beer was settled for.

Just about this time the owner of the premises, Mr. McCaw, and his wife drove up and stopped immediately in front of defendant's car, and got out.Mr. McCaw was excited, and Mooneyhan offered to pay him for the beer, but he refused and told his wife to call the law.The three codefendants ran away, but defendant made no attempt to escape.The officers arrived and found that...