Samples v. State

• Decision Date: 14 January 1959
• Docket Number: No. A-12639,A-12639
• Citation: 337 P.2d 756
• Parties: Jay G. SAMPLES, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 756

337 P.2d 756

Jay G. SAMPLES, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.

No. A-12639.

Criminal Court of Appeals of Oklahoma.

Jan. 14, 1959.

On Rehearing April 1, 1959.

Syllabus by the Court

1. A conviction will not be reversed for alleged misconduct of the prosecuting attorney, unless this court can say that the prosecuting attorney was not only guilty of misconduct, but that such misconduct might in some degree have influenced the verdict against the defendant.

2. Where there was no evidence of a prearranged plan between the jobber for the thief and the person charged with knowingly receiving stolen property, for the property to be stolen and delivered to accused, the one who receives the property is not an accomplice of the jobber for the one who commits the theft or of the thief.

3. Where the facts justify, the court should, as a matter of law, instruct the jury that the witness is an accomplice, and this instruction should be followed by one based on Title 22 O.S.1951 § 742, but one may waive the giving of this instruction by failure to request it.

4. Where counsel fail to request the court to instruct the jury that a particular witness is an accomplice, particularly where the evidence is such as to cast doubt, the giving of such an instruction is waived.

5. Where the party desires the court to give any particular instruction, or to more definitely or fully state any proposition embraced in the charge, it is the duty of counsel to prepare and present to the court such desired instruction and request that it be given, and in the absence of such request, appellate court will not consider an objection that an instruction, correct as far as it goes, does not fully state the law, or that the court failed to instruct upon any given proposition, where the instructions generally cover the subject matter of the inquiry.

6. In a prosecution for receiving stolen property, evidence examined, instructions as a whole are approved and held sufficient to support the verdict and sentence of conviction.

7. Held: Instruction No. 5 given on circumstantial evidence in the instant case comparable with instruction heretofore approved by this court in paragraph 6 of syllabus in Jones v. State, 69 Okl.Cr. 244, 101 P.2d 860. Also held further that where in motion for new trial the objection that the court erred 'in giving its instructions No. 1 to 9, both inclusive' insufficient.

8. General exceptions to instructions of the court to the jury will not be considered on appeal. When counsel desire to except to any instruction, the attention of the court should be directly called to the instruction objected to in order that the court may be given an opportunity to correct any error it may contain. If this is not done, errors in instructions will be waived, unless they are fundamentally erroneous.

9. The term 'conviction' in Art. 6, § 10 of the Constitution denotes the final judgment of the trial court, upon a plea or verdict of guilty.

Appeal from the District Court of Canadian County; Wm. L. Fogg, Judge.

Jay G. Samples was convicted of the crime of receiving stolen property, and appeals. Modified and affirmed.

Bulla, Melone & Meister, Oklahoma City, J. A. Rinehart, ElReno, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.

POWELL, Presiding Judge.

The plaintiff in error, defendant, was charged by information in the district court of Canadian county with the crime of receiving stolen property; was tried before a jury, convicted, but the jury being unable to agree upon the punishment to be assessed, left that to the court, who fixed the penalty at confinement in the State penitentiary for a period of two years.

The pertinent portion of the information reads:

'That is to say, the said defendant, then and there being, did then and there willfully, unlawfully, feloniously and wrongfully buy and receive from one Robert V VanBuskirk for a consideration of $80.00 approximately twenty-three cases of motor oil of the reasonable value of $150.00 of good and lawful money of the United States of America, that had at the time been stolen from another person, other than defendant, the defendant knowing at the time that said motor oil had been stolen and was stolen property, all in violation of section 1713, Title 21, Oklahoma Statutes, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State.'

For reversal five specifications of error are advanced, which will be treated in the order presented.

The first proposition is based upon paragraph 4 of defendant's motion for new trial, and paragraph 5 of petition in error, and for the sake of brevity will be stated as found in the motion for new trial, as follows:

'The conduct of the county attorney in persistently asking the State's witnesses on direct and re-direct examination leading and suggestive questions which tended and did emphasize the testimony of such witness in the mind of the jury.'

To support the allegations in the information the State used the confessed thief, Thomas Edward Morse, Jr., who, while working around the warehouse of William Schulte in ElReno (who was a Phillips Petroleum Company wholesale dealer in oil and gas) as laborer and janitor, had a duplicate key made to the warehouse lock, and in that way gained access at night to the stored oil, and with the aid of one Robert V. VanBuskirk, had been selling this canned oil to various persons. VanBuskirk also testified. He had been convicted for his part in the thievery, but at the time of the testimony had not been sentenced. The jury had left his punishment to be fixed by the court. The record shows that VanBuskirk's sentence was suspended.

Various other witnesses testified for the State, including William Schulte, who had lost the oil. He admitted that he had signed the thief's bond after he had been charged, and in fact while the case was pending employed him to cut the grass at his home; and that the contractor who was building an addition to the warehouse that had been robbed, used Morse a half day performing labor.

Counsel for the defendant point out numerous questions asked by the assistant county attorney during the course of his direct examination of State's witnesses, and particularly Thomas Morse, Jr., and Robert VanBuskirk. The record reflects that defense counsel was alert and in most instances before the witness would be able to answer the particular question by the particular witness, objected, on the ground that such question was leading and suggestive, and in almost every instance the court sustained the objection of defense counsel. However, we have been amazed to note that such proper rulings on the part of the trial court did not seem to slow down the assistant county attorney, who persisted throughout the trial on direct examination in asking leading questions.

It is argued by counsel for defendant that the continued asking of leading and suggestive questions by the assistant county attorney in disregard of the court's rulings and admonitions, was without expectation of the answers; that there was persistent indulgence of side remarks to opposing counsel with obvious purpose of prejudicing the jury against the defendant, and that such conduct constitutes reversible error.

In view of the argument, though the sufficiency of the evidence to support the verdict of the jury has not been questioned, we have read and checked very carefully the voluminous record of the testimony and particularly the court's rulings. The court was very careful in his rulings, and, as stated, in most instances, sustained counsel for defendant and properly cautioned the jury to not consider answers that were made before the court could rule. In a close case the cumulative conduct of the assistant county attorney complained of here in the interest of fairness might force a new trial.

Here, however, the defendant testified in his own behalf, and substantially corroborated the testimony of the State's witness VanBuskirk relative to his dealings with him concerning the time, place and price paid for the alleged twenty-three cases of motor oil, set out in the information. In fact, he admitted later purchases. And Thomas Edward Morse, Jr., just prior to being caught by witness Schulte in his warehouse in the night time loading out cases of motor oil, had suggested to defendant that he would leave out his salesman, Robert VanBuskirk, and sell him the oil at $3.00 per case. Both VanBuskirk and Morse admitted that they told the defendant that the oil was not 'hot' but was legitimate, and denied telling the defendant that the oil came in on a load of whiskey or was purchased as damaged oil from an insurance company, which was the theory of defendant when he testified. Both VanBuskirk and Morse made delivery of the stolen oil to defendant in Morse's automobile.

The jury apparently did not judge the defendant so naive that he actually put full credence in the representations of the day laborer and his close friend suddenly turned oil dealers, and believed, it would seem from the evidence, that defendant had good reason to believe the oil to be stolen. There is ample basis in the evidence for such conclusion, independent of the testimony of VanBuskirk, from whom he purchased the oil, corroborated by other witnesses, and in fact not denied by the defendant, except that he had no reason to believe the oil was stolen.

In view of the evidence, we must apply the principle long adhered to by this court that a conviction will not be reversed for alleged misconduct of the prosecuting attorney, unless this court can say that the prosecuting attorney was not only guilty of misconduct, but that such misconduct might, in some degree, have influenced the verdict against the defendant. Davis v. State, 7 Okl.Cr. 322, 123 P. 560; Campbell v. State, 23 Okl.Cr. 250, 214 P. 738.

Defendant...