Smith v. State, A-12773
| Decision Date | 25 November 1959 |
| Docket Number | No. A-12773,A-12773 |
| Citation | 347 P.2d 232 |
| Parties | Robert Lee SMITH, 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 |
Syllabus by the Court
1. The breaking necessary to constitute the crime of burglary may be by any act of physical force, however slight, by which obstruction to entering is forcibly removed. 21 O.S.1951 § 1435.
2. Burglary is the forcible entry with intent to steal or to commit some other offense, and since the crime is complete when the entry is made with intent to steal, actual stealing which is only evidence of intent, is not necessary. 21 O.S.1951 §§ 42, 1431, 1435, 1436.
3. Information found to properly charge the crime of burglary in the second degree, after former conviction of a felony.
4. Appeal by petition in error and transcript to Court of Criminal Appeals presents for review only fundamental errors and not errors which require examination of the evidence taken at trial.
5. Question as to the admissibility and sufficiency of the evidence could not properly be urged on appeal perfected by transcript. 22 O.S.1951 § 1060.
Appeal from the District Court of Oklahoma County; Fred Daugherty, Judge.
Robert Lee Smith was convicted of burglary in the second degree, after former conviction of a felony, and appeals. Affirmed.
Robert Lee Smith, plaintiff in error, pro se.
Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., for defendnat in error.
Plaintiff in error, Robert Lee Smith, hereinafter referred to as defendant, is confined in the State Penitentiary at McAlester by reason of conviction in the district court of Oklahoma County on a charge of burglary in the second degree, after former conviction of a felony. He was tried before a jury, found guilty and the jury being unable to agree upon the punishment, left that to the Court, who assessed the penalty at 15 years confinement in the institution stated.
The record discloses that defendant was represented in the lower court by counsel H. M. Redwine, but motion for new trial was filed by the public defender, Homer Thompson. The appeal is by transcript, and of course by reason thereof, we do not have the testimony of the many witnesses endorsed on the information, and a good portion of whom presumably testified.
Defendant has prepared a petition in error and a brief in support thereof, and filed in this Court, together with a transcript of the case, which includes the information, motion to quash, the instructions given the jury, the verdict, judgment and sentence, minutes of the Court, motion for new trial, etc.
We have particularly examined the information and record to discover any reversible error, because this appeal is prose, and the prisoner might overlook something.
Note the charging part of the information:
'That is to say, the said defendant, in the county and state aforesaid, and on the day and year aforesaid, then and there being, did then and there wilfully, unlawfully, burglariously and feloniously break and enter into a one-story brick building, known as the Ford Distributing Company, located at 700 SW 2nd St., in Oklahoma City, in the said county and state, which said building was then and there under the control of and in the possession of Clarence Ford and in which said building there was then and there kept certain personal property, to-wit: money, etc., by forcible entry through the rear overhead door by removing the bolts from the door and breaking some boards from the door and entering therein with the wilful, unlawful and felonious intent then and there on the part of the said defendant to take, steal and carry away by stealth and fraud and without the knowledge or consent of the owner thereof, some or all of the property therein contained at said time and place, with the unlawful, wilful and felonious intent then and there on the part of the said defendant to appropriate the said property to his own use and benefit and to...
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