Roberts v. Territory Oklahoma

• Decision Date: 15 June 1899
• Citation: 8 Okla. 326,1899 OK 61,57 P. 840
• Parties: GEORGE ROBERTS v. THE TERRITORY OF OKLAHOMA
• Court: Oklahoma Supreme Court

1899 OK 61

57 P. 840

8 Okla. 326

GEORGE ROBERTS v. THE TERRITORY OF OKLAHOMA

Supreme Court of Oklahoma

Decided: June 15, 1899

SYLLABUS

¶0 BURGLARY--Evidence--Consent. Under an indictment for burglary, if it appeared from the evidence that the entry was instigated by the occupant of the building which was burglarized, or that it was done with the knowledge and assent of the occupant, and that one of the persons engaged in the breaking and entry of the building was a detective and decoy acting with the authority of the occupant, the defendant would not be criminally liable.

Error from the District Court of Custer County; before John C. Tarsney, District Judge.

George Roberts was convicted of burglary, and brings error. Reversed. This was a trial upon an indictment for burglary in the second degree. It appeared from the evidence that the defendant, Roberts, in company with his brother, Bert Roberts, and one Dick Shriver, had raised a window and entered the saloon of one Ben Bullard. The plaintiff in error was found guilty, and sentenced by the court to imprisonment in the penitentiary.

Grigsby & Pearl and W. A. Maurer, for the plaintiff in error.

Harper S. Cunningham, Attorney General, J. T. Shive, County Attorney, and Roy Hoffman, for defendant in error.

MCATEE, J.:

¶1 One of the grounds stated in the motion for a new trial was that the court had committed error upon the trial of the cause, and that the verdict of the jury was contrary to the law and the evidence. The action of the court here complained of was upon a demurrer to the testimony introduced by the prosecution upon the ground that it did not prove the guilt of the defendant, and because the witness, Ben Bullard, who owns the building, and the goods in the building, charged in the indictment, had made and entered into an agreement with one Dick Shriver to bring the defendant there and go into the saloon, and that Bullard could not make a break into his own building, and that, if he gave Shriver authority to do so, there was no breaking in."

¶2 It appeared from the testimony on the part of the prosecutions that Bullard was the occupant of the saloon building in which the burglary was charged to have been committed; that he was informed by one Dick Shriver that the defendant, Roberts, and his brother, Bert Roberts, were going to break in there, and that Shriver told Bullard about it, and that Bullard told Shriver to find out if he could, what night it was, and, when he had found out, to let him (Bullard) know; that afterwards Shriver informed Bullard that "tomorrow night the boys were coming to break in, and I am coming with them;" and that finally Bullard told him that it would be "all right." It appeared from the cross-examination of Bullard that Shriver had at times kept bar for him in the saloon, and under cross-examination he testified as follows:

"Question. And you told Shriver it would be all right for him to bring them (the Roberts boys,) and go into the house? Answer. Not at that time. Not at the first time.

"Q. Did you tell him that at any time before the breaking? A. He said they would break in whether he came or not.

"Q. And then you told him that it would be all right if he went along with them and broke in? A. No, sir; I only told him that it would be all right."

¶3 The defendant testified: That at the time of the alleged breaking he was 17 years of age. That he had known Dick Shriver for about a year and a half, and that he (Shriver) had kept bar for Bullard "off and on." That on the night of the alleged breaking "he left there to go to the dance, and intended to go around by our father's place, so that my brother could change his clothes; and we got on our horses, and Dick says, 'We haven't got enough whisky; we will go and get some;' and he says, 'The window is left open for my benefit;' and we says to him, 'If there is no danger, we'll go,' and he says, 'Well, just walk up there;' and we started to go to the back entrance, and the window was raised two or three inches. There was no prizing or anything of that kind at all."

"Question. How did the window get up higher? Answer. The boys, I suppose, raised the window higher."

¶4 And that Shriver had told the defendant and his brother that the window was left open for his benefit, and, of course, "we thought it was all right," and that, at the time of the breaking, Shriver was living with Ben Bullard.

¶5 This testimony was uncontradicted. The name of Dick Shriver was endorsed...