Plaxico v. State

• Decision Date: 19 April 1944
• Docket Number: A-10282.
• Citation: 148 P.2d 201,78 Okla.Crim. 353
• Parties: PLAXICO v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

148 P.2d 201

78 Okla.Crim. 353

PLAXICO v. STATE.

No. A-10282.

Court of Criminal Appeals of Oklahoma

April 19, 1944

Syllabus by the Court.

1. 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. 22 O.S.1941 § 742.

2. Evidence corroborative of an accomplice need not directly connect the defendant with the commission of the crime; it is sufficient if it tends to connect him with its commission.

3. Evidence corroborating an accomplice and tending to connect the defendant with the commission of the crime need not be direct, but may be circumstantial only.

4. It is not essential that the corroborating evidence shall cover every material point testified to by the accomplice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to some material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all. Such corroborating evidence, however, must show more than the mere commission of the offense or the circumstances thereof.

5. Where there is evidence in corroboration of an accomplice tending to connect a defendant with the commission of the crime charged, the sufficiency of such corroborating evidence is for the jury.

6. Criminal Court of Appeals will not substitute its judgment on questions of fact or the weight of the evidence for that of the jury where there is competent evidence from which the jury might reasonably and logically find the guilt of the defendant.

7. Record examined and evidence held sufficient to sustain judgment of conviction for larceny of cattle.

Appeal from District Court, Comanche County; Toby Morris, Judge.

Jack Plaxico was convicted of larceny of livestock, and he appeals.

Affirmed.

Lewis Hunter and J. F. Thomas, both of Lawton, for plaintiff in error.

Randell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen for defendant in error.

JONES Presiding Judge.

The defendant, Jack Plaxico, was charged by information filed in the District Court of Comanche County with the crime of larceny of livestock; was tried, convicted and sentenced to serve three years in the state penitentiary, and has appealed.

For a reversal of this case, it is contended that there is not sufficient evidence to corroborate the testimony of the accomplices and that, therefore, the evidence is wholly insufficient to sustain the judgment of conviction.

The theory of the prosecution was that the defendant had made an agreement with two youths, Ray Seay, age 17, and Ode Risinger, age 18, whereby the two youths were to put up some cattle belonging to L. A. Goodwin, but which were being looked after by Ray Seay, and that pursuant to such agreement three white-faced calves of Goodwin's were placed in a barn where they were loaded into the pickup truck of the defendant and transported by defendant to a public sale at Frederick where they were sold in defendant's name. The defendant gave the two youths a check in the sum of $20 as their part in the transaction.

L. A Goodwin testified that he lived at Altus. That he had some cattle in Comanche County near the town of Cache.

That Ed Seay and his son, Ray Seay, were looking after this livestock for him.

Ed Seay testified that he had been working for Mr. Goodwin near Cache since 1933. That Goodwin had some cattle on two different places. That he was farming and seeing after the cattle on one place, and that his son was living on the other place. That at the place where the son, Ray Seay, lived there were fifteen cows and nine calves. That on the night of February 11, 1941, two white-faced heifers and one white-faced bull calf were taken from the herd of cattle at the Ray Seay place. That he gave no one permission to take those calves.

Ode Risinger testified that he lived one-half mile west of Cache and was well-acquainted with defendant. That on February 11 1941, he had come to the town of Cache with Ray Seay. That he saw defendant, Jack Plaxico, in Cache. That Plaxico called him to the back end of his pickup truck and asked him if he knew where they could get any calves to where he, Plaxico, could make half price on them. That witness asked Plaxico who would take the blame if they got caught and Plaxico said he would. That witness then called Ray Seay over to the car and they asked Ray Seay if they could get any calves at his place to where the defendant could take them and make one-half profit on the calves. That after some conversation the witness and Ray agreed to have the calves in the barn at Ray Seay's place the next night by 9 o'clock. That after defendant left the witness and Ray Seay decided they would put the calves in the barn that night. That they took three of the Goodwin calves, put them in the barn and then drove to the defendant's house. That defendant was getting ready for bed but stated he would be at Ray Seay's place in about three-quarters of an hour. That he left Ray Seay at the witness' brother's house while he took Ray's car and went on over to the place where the calves were left. That the defendant drove up to the yard, turned his lights out and then drove on down to the barn door. That the witness ran the calves into the truck and defendant drove back out in the yard and stopped. That the witness and defendant then took some weeds and stuff and rubbed out the car tracks. That before the defendant left he gave the witness a check for $20. The check was identified and admitted in evidence. That the next day he and Ray Seay took the check to Joe Barger's filling station and cashed it and they divided the money.

Ray Seay told substantially the same story as that related by Ode Risinger.

Ernest Covington testified that about 8:30 A. M., February 12, 1941, he saw defendant at the sale barn in Frederick. Defendant had three good, white-faced calves. After some dickering with defendant, witness bought the calves for $47.50. That witness then ran the calves through the auction and they brought $64.50.

Tom Amyx, manager of the sale barn at Frederick, testified concerning the method of handling the sales and identified the check for $46.07 payable to A. J. Plaxico, the defendant, which was the sales price to Covington less the commission. The check was introduced in evidence and shows an endorsement of A. J. Plaxico.

R. P. Dunham testified that he bought the three calves that Jack Plaxico had brought to the sale for $64.50 when they went through the sales ring. That he thought that was a fair price for the calves.

Joe Barger testified that he cashed the $20 check given by defendant to Ode Risinger on February 12. That Ode Risinger and Ray Seay came to his service station together, filled the car with gasoline and he gave them the difference between the cost of the gasoline and the $20 check.

L. L. Tomlinson, sheriff of Comanche County, testified that he received a call from the deputy sheriff at Frederick with reference to some calves that had been brought to the sales ring by the defendant. That he drove to defendant's house and had a conversation with him about the calves. That defendant told him he got them from Ode Risinger. That he left defendant's premises as if to go talk to a man by the name of Sartain who had ridden to Frederick with defendant, but instead circled back towards the Risinger place to see whether defendant had gone there after his conversation with the witness. That they met defendant right at a bridge about two hundred feet this side of Risinger's place. That he stopped the defendant and asked what he was doing there and defendant said he had come to the filling station to get some smoking tobacco. The filling station was closed. That the sheriff then said, "You passed by several places that handled smoking tobacco." That defendant did not say anything. That he then took him to town on investigation concerning the calf deal. On the way to town defendant told him he had given a $20 check to Risinger for the calves.

It was thereupon stipulated that defendant's bank account showed a balance on February 8, 1941, of $10.27. That on February 13, 1941, there was deposited to defendant's credit the sum of $40 and that on the 13th and 14th of February there were checks drawn against his account in the amount of $48.00.

The defense which was interposed was that the purchase of the calves was made by the defendant from Ode Risinger in good faith for the sum of $40. That $20 was paid in cash and a check given for $20.

Mrs Jack Plaxico, wife of defendant, testified that she was with defendant in Cache when he was approached by Ode Risinger who told him he had some cattle for sale. That her husband did not get out of the car and go to the back end, but talked to Risinger by the door. ...