Simmons v. State, F--75--232

• Decision Date: 14 April 1976
• Docket Number: No. F--75--232,F--75--232
• Citation: 549 P.2d 111
• Parties: Bill Wayne SIMMONS, a/k/a William Wayne Simmons, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 111

549 P.2d 111

Bill Wayne SIMMONS, a/k/a William Wayne Simmons, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--75--232.

Court of Criminal Appeals of Oklahoma.

April 14, 1976.

As Corrected on Denied of Rehearing May 11, 1976.

Valdhe F. Pitman and, Barry R. Davis, Oklahoma City, for appellant.

Larry Derryberry, Atty. Gen., James L. Swartz, Asst. Atty. Gen., Jahn D. Rohrer, Legal Intern, for appellee.

OPINION

BUSSEY, Judge:

Appellant, Bill Wayne Simmons, a/k/a William Wayne Simmons, hereinafter referred to as defendant, was charged in the District Court, Oklahoma County, Case No. CRF--74--1755, by a two page information with the crime of Petit Larceny, After Former Conviction of a Felony. Page 1 of the information charged the defendant with the crime of Petit Larceny. Page 2 of the information charged the defendant with the crime of Petit Larceny, After Former Conviction of a Felony, in Case No. 31960, in the District Court, Oklahoma County, State of Oklahoma. He was tried by a jury, convicted and punishment by the jury was fixed at a term of three (3) years in the Oklahoma State penitentiary. From said judgment and sentence, a timely appeal has been perfected to this Court.

In the first stage of the proceedings, the State's first witness was Bennie L. Dickenson. He testified that on May 24, 1974, he was the manager of Strick's Tire Company, located at N. Western and Britton Road in Oklahoma City. At approximately 12:30 p.m., Dickenson and two employees of the tire company were inside the store when he noticed a white station wagon in the alley south of the store stopped near a large tire rack adjacent to the alley. He observed a man get out of the station wagon, remove a tire from the large tire rack and put it in the station wagon. He yelled to the two employees that the man had taken a tire from the rack and the two employees pursued the station wagon on foot Dickenson went to his vehicle and drove around the corner in order to block the alley. He drove down the alley and as he approached the station wagon he saw that Jimmy Leon Simmons, one of the employees, had already stopped the station wagon, and that the driver was out of the vehicle. After some conversation with the driver he became upset and ordered the driver to wait in the station wagon until the police arrived.

Following this testimony the witness identified the driver of the station wagon as the defendant. He then identified the tire alleged to have been stolen by defendant by pointing out the company markings on the tire. He stated that the value of the tire was between $12.00 and $15.00.

On cross-examination the witness described the physical layout of the tire store. He said that although his view of the station wagon was partially blocked he was able to see enough of the station wagon to identify it and to see the defendant remove a tire from the large tire rack.

The next witness to testify for the State was Jimmy Leon Simmons. He testified that on the 24th of May he was an employee of Strick's Tire Company, and that he was inside the store with Mr. Dickenson and another employee when he saw the white station wagon in the alley. After Mr. Dickenson yelled, he ran out of the store and pursued the white station wagon. He shouted at the driver, whom he identified in court as the defendant, to stop the station wagon. The witness approached the vehicle, opened the door and told the defendant to get out. The witness testified that when the defendant exited the car he stated that he could have gone on without stopping, and then he offered to pay for the tire. The offer was rejected and the defendant was told by the witness that they were going to call the police. While this conversation was going on Mr. Dickenson arrived, stopping his vehicle in front of the station wagon. The witness further testified that while waiting for the police to arrive he looked into the back of the station wagon and saw a tire. He was asked to examine a tire, State's Exhibit No. 1, and identified it as the same tire he had seen in the back of the station wagon. His identification was based upon the tire company's markings on the tire. In his opinion, the value of the tire was $18.00 to $20.00.

The last witness to testify for the State was Larry W. Andrews, Police Officer with the Oklahoma City Police Department. He testified that when he arrived on the scene he saw two employees of Strick's Tire Company and the defendant, who was sitting in the station wagon. In the presence of defendant, one of the employees told him that he saw the defendant take a tire from the tire rack, place it in the back of the station wagon and drive away. The other employee told Officer Andrews that he had pursued the station wagon and stopped the defendant. The officer further testified that when he asked defendant his name, the defendant replied, 'Bill Walters.' The officer arrested defendant and read him his Miranda rights. The defendant was taken to the Oklahoma City Police Headquarters and the station wagon was impounded. At police headquarters the officer personally checked to see if defendant had been arrested before. In the process of checking the records, Officer Andrews learned the correct name of the defendant to be William Walter Simmons, and that the defendant had been previously identified by five other names.

Officer Andrews also testified that while at the scene of the alleged crime he removed the tire from the back of the station wagon, placed a police property tag on it and later placed it in the police property locker room. He identified State's Exhibit No. 1 as the tire he had removed from the station wagon and tagged.

On cross-examination Officer Andrews testified that he arrested defendant for larceny and did not advise defendant whether he was arresting him for grand larceny or petit larceny. He stated that he made no attempt to value the tire when he arrested the defendant, other than relying on the estimate provided by the tire store employees, which at that time they stated was $25.00.

At this point the State rested and the defendant did not present any witnesses, nor himself testify.

In the second stage of the proceedings the State's first witness, Greggory Marcel Smith, Deputy Court Clerk for Oklahoma County, identified State's Exhibit No. 2 as a final judgment and sentence on conviction in the case of the State of Oklahoma versus William Wayne Simmons, number 31960. Through this witness, State's Exhibit No. 2 was admitted into evidence.

The last witness to testify for the State was Marvin Doherty, Police Officer with the Oklahoma City Police Department. He stated that he had testified as a witness in 1966, in case number 31960, where William Wayne Simmons was charged with grand larceny after former conviction of a felony and was convicted of petit larceny after former conviction of a felony. The officer then identified the defendant herein as the defendant in the proceeding had in 1966.

The defendant's first assignment of error alleges that the trial court erred in failing to sustain defendant's demurrer to the information and motion to quash the information. Defendant contends that the information did not state facts sufficient to constitute an offense, the information was illegal and in violation of defendant's constitutional and statutory rights to equal protection under the law and that the information failed to apprise defendant of what he must defendant against.

To fully understand the argument of the defendant it is necessary to set out the pertinent parts of the first page of the two page information. Initally, the information states that:

'BILL WAYNE SIMMONS, aka William Wayne Simmons whose more full and correct name is to your informant unknown, then and there being, did then and there wilfully, unlawfully and FELONIOUSLY commit the crime of PETIT LARCENY (21 O.S.A. 1701) . . .' (Emphasis added)

Further, in the body of the information it states:

'(d)id then and there wilfully, unlawfully and Feloniously take, steal and carry away by stealth and fraud, and without the knowledge or consent of the owner thereof, . . .' (Emphasis added)

And, further down it states:

'(T)he said taking, stealing and carrying away of said property on the part of the said defendant was with the unlawful, Felonious and wilful intent to appropriate the same to his own use and benefit and to permanently deprive the said rightful owner thereof: . . .' (Emphasis added)

The defendant contends that although the information charges petit larceny, it in fact purports to charge the defendant with a felony of petit larceny because the word 'feloniously' is used twice and the word 'felonious' is used once. It is the defendant's belief that the inclusion of these words in the information caused it to be fatally defective. We are of the opinion that the use of the words 'feloniously' and 'felonious' in the information do not purport to charge the defendant with the felony of petit larcey, but properly charges the misdemeanor of petit larceny.

The defendant was charged under 21 O.S.1971, § 1701, which reads:

'Larceny is the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof.'

The general rule in larceny cases is that felonious intent is an essential element in larceny and the State must prove beyond a reasonable doubt that the property was taken with such intent. Linde v. State, 61 Okl.Cr. 136, 66 P.2d 527 (1937). In Abraham v. United States, 15 F.2d 911 (8th Cir. 1926), where the court was discussing the Oklahoma statute on larceny, it was stated by the court that animus furandi and intent to deprive the owner permanently of his property at the time of the taking is necessary to larceny. Animus furandi, as defined in Bouvier's Law Dictionary, page 199, 8th ed. 1914, is the intention to steal, in order to constitute larceny, the thief must take the property animo furandi; but this is expressed in the...