Spann v. State

• Decision Date: 06 June 1940
• Docket Number: A-9626.
• Citation: 103 P.2d 389,69 Okla.Crim. 369
• Parties: SPANN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

103 P.2d 389

69 Okla.Crim. 369

SPANN v. STATE.

No. A-9626.

Court of Criminal Appeals of Oklahoma

June 6, 1940

Syllabus by the Court.

1. If there is a conflict in the evidence or different inferences may be drawn therefrom, it is the province of the jury to weigh the evidence and determine the facts; and their determination should not be interfered with unless it appears that such determination was not sustained by sufficient evidence or was influenced in some way by passion or prejudice.

2. Where the State relies for a conviction upon circumstantial evidence and all the facts or circumstances upon which the conviction rests are consistent with and point to the guilt of the defendant and are inconsistent with any other reasonable hypothesis except the guilt of the defendant, this court will not disturb the verdict on account of the insufficiency of the evidence.

3. Habitual criminal statute, Penal Code, Art. 6, Sections 1817 and 1818, O.S.1931, 21 Okl.St.Ann. §§ 51 and 52, does not create or define a new or independent crime, but describes circumstances wherein one found guilty of a specific crime may be more severely penalized because of his previous conviction, as alleged and found. "Habitual criminality" is a state and not a crime.

4. This statute is a valid, existing penal provision and does not conflict in any way with any of the constitutional guaranties possessed by one who is accused of committing a criminal offense.

5. The proof of the prior conviction may be made by introducing the information, the verdict of the jury, the judgment and sentence pursuant to the verdict, the commitment under the judgment and sentence, and an identification of the defendant as being the party against whom the judgment was rendered.

6. Record examined, instructions approved, and evidence held sufficient to support a conviction for burglary in the second degree.

Appeal from District Court, Pontotoc County; Tal Crawford, Judge.

Harry Spann was convicted of burglary in the second degree, and he appeals.

Affirmed.

Brunson & Brunson, of Ada, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen for defendant in error.

JONES Judge.

An information was filed in the District Court of Pontotoc County on April 10, 1937, charging Frank Campbell, J. C Campbell, and Harry Spann with the crime of burglary in the second degree, and of the crime of the second and subsequent offense as to Harry Spann; a severance was granted; the defendant Harry Spann was tried, convicted of the offense of burglary in the second degree, but the punishment was left to the court. Thereupon the district court sentenced the defendant to five years in the State Penitentiary, and he has appealed to this court.

The principal considerations relied upon by the defendant for reversal of this case are:

1. The evidence is wholly insufficient to support a verdict of guilty.

2. Error of the court in admitting evidence

pertaining to the prior conviction of the defendant on a felony charge and submitting said issue of second and subsequent offense to the jury for the reason it places the defendant in jeopardy twice for the same offense.

In considering the first question it will be necessary to give a summary of the evidence introduced by the State.

J. J Shields testified he was superintendent of a quarry owned and operated by the Oklahoma Portland Cement Company at Lawrence, Oklahoma. That he had known the defendant for about sixteen years; that on the 13th day of October, 1936, the cement company had about sixteen thousand pounds of powder and explosives stored in a magazine which was a brick building without windows, but which had one steel door with a lock; and the building was surrounded by a fence which had a double lock on the gate. That on October 15th he was informed that the magazine had been entered; and he drove over to that place, found the gate was cut, the door was cut, and the lock was broken. There were several cases of explosives missing. These explosives were in the magazine on the 13th; and when he went there on the 15th, they were gone. Some of the explosives were shipped from McAlester and some came from the factory at Joplin. After the powder was put in the magazine on the 13th and before it was taken on the 15th, the witness saw the defendant come into the shop. The defendant stood around a minute and walked on up the railroad track in a northwesterly direction. The containers the powder was in had serial numbers on them, and a record was made of it; and later they got fifty-three cases back from the sheriff's office. The magazine from which the powder was taken was in Pontotoc County, Oklahoma.

Sam Robinson testified that he lived in Lawrence and worked for the cement company. His testimony as to the location of the magazine, the quarry, and the company's property in general is the same as Shields. He went with Shields to the magazine after the magazine was reported broken into. The powder was missing and the locks were gone. A lot of the dynamite that was taken were sticks five inches by ten inches, which were a special order for this particular company.

R. L. Clotz testified that he was the salesmanager for the Hercules Powder Company for all of the State of Oklahoma except Ottawa County, and had been for three years; that they sold powder of the dimensions of five inches by ten inches to the cement company who were the only users of this powder in the Southwest. That they only manufactured that powder on special orders. He knew the serial numbers of the powder sold to the company, and identified the box before him as the box of his company in which a part of the explosives was shipped to the cement company at Ada.

Sterling Price testified he was employed by the cement company as time-keeper. Much of his testimony is the same as that of Robinson and Shields. He described and identified the fifty-three cases which had been recovered by the company from a truck in the custody of Roy Keller, chief of police.

Wayne Vickers testified that in 1937 he was working for the Ada Police Department. That on January 14th, he, Roy Keller, and Quinton Blake drove south of Fitts Town to the top of a mountain. Acting upon a tip which they had received that the stolen explosives would be brought along that road on a truck, they waited at that spot until the truck came by. They stopped the truck; and Frank Campbell, J. C. Campbell, and the defendant Harry Spann were in the truck. The dynamite which was identified as that stolen from the cement company was on the truck. Frank Campbell was driving the truck; the defendant was sitting in the middle next to the driver. They brought the truck and the dynamite back to Ada, and put the defendant and Frank Campbell in jail.

The testimony of two witnesses which was taken in the preliminary hearing was introduced in evidence by the State.

Carl Spann, son of the defendant, was absent at the time of the trial in the district court, and a transcript of his testimony given at the preliminary hearing was read at the trial. He testified that he remembered receiving information about his father being arrested, and that was "last Tuesday night." He saw his father in town Tuesday; the witness owned the car and took his father out to Frank Campbell's; did not find Frank at home; then they drove to Mr. Campbell's father's place, and "he came out to the car and on to town with us." He took his father out to Ed Barnes' place; they came back to town, and later took his father and Frank Campbell to Barnes' place about dark. "When we got there, Dad got out of the car and went to see Ed. When we left there, I drove a truck; and Frank was in my car. We drove back around to where Mr. Campbell lives. I sat in my car for over an hour; Frank and Dad left with the truck; I don't know what they were going after. I brought Ed Barnes back to town. When I left, there were three in the truck and they were coming on towards town."

Jim Carney testified at the preliminary hearing that along about Tuesday evening he was looking for a cow near the home of W. W. Campbell, and that right on the road by the bridge a truck was stopped. The motor was running. He saw three individuals there and recognized J. C. Campbell's voice.

This witness' testimony and that of Carl Spann connects the defendant and Campbell with being together in Ed Barnes' truck. This was the truck in which Campbell and the defendant were riding with the explosives at the time of their arrest.

Della Bedford testified that she was the Court Clerk of Pontotoc County. She testified as to the previous conviction of the defendant and identified the information, the verdict of the jury, the judgment and sentence of the court, and the mandate of the Criminal Court of Appeals wherein the judgment was affirmed...