Stanley v. State

• Decision Date: 28 May 1937
• Docket Number: A-9215.
• Citation: 69 P.2d 398,61 Okla.Crim. 382
• Parties: STANLEY v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

69 P.2d 398

61 Okla.Crim. 382

STANLEY v. STATE.

No. A-9215.

Court of Criminal Appeals of Oklahoma

May 28, 1937

Syllabus by the Court.

1. One taking hogs from the range under a claim of title of ownership and a right to their possession is not guilty of larceny, even though he is mistaken as in such case the felonious intent is lacking.

2. The word "steal" as used in Oklahoma Statutes 1931 section 2267 (21 Okl.St.Ann. § 1716), defining larceny of domestic animals includes all the elements of larceny at common law.

3. Evidence examined and found insufficient to show criminal intent to commit larceny.

4. Record carefully examined and the evidence stated in the opinion considered, and found insufficient to warrant a conviction.

Appeal from District Court, Ottawa County; Ad V. Coppedge, Judge.

Bert Stanley was convicted of larceny, and he appeals.

Reversed.

O. F Mason, of Miami, for plaintiff in error.

Mac Q Williamson, Atty. Gen., for the State.

DAVENPORT Presiding Judge.

The plaintiff in error, the defendant in the lower court, was by information charged with larceny of one black sow, weight about 260 pounds, marked with a swallow fork in the left ear and a split in the right ear, and five black and red spotted shoats which weighed about 40 pounds each, with no marks or brands, the property of Alvie Cunningham; was convicted and sentenced to serve a term of two years in the state penitentiary. Record was properly saved, and the defendant has appealed.

The state to maintain the charge against the defendant called as a witness Alvie Cunningham, who stated he lived in Ottawa county in the fall of 1934 and until January, 1935; "I know Bert Stanley; he lived north and east of me something like a mile and a half; I know Hallie Lankford; he lives south and west of my place something like a mile or a mile and a half early in January 1935 I was the owner of a black sow that weighed about 250 pounds, and five shoats; the sow was marked with a swallow fork in the left and a split in the right ear; I had owned her for more than two years; the shoats, I imagine would weigh about forty pounds; they were running on the open range; the sow had been ranging down on Cow Skin, she would go back and forth; I got Mr. Maddux to go with me down there and hauled them home and kept them shut up for about three weeks and turned them out, and they would go off and stay maybe three or four days, maybe a week, and then come back, and then disappear again.

After they disappeared I went down to Mr. Hamas' where she had been running in a wheat field and late corn field near the river; I went next to Mr. Lankford's, the sow had been there but was gone; I looked for my hogs but I did not find them. I went to Mr. Bert Stanley, the defendant, and told him I had come to demand my hogs, that I had found out he had my hogs and I wanted my money for them; he said he did not know they were my hogs or he wouldn't have gotten them; we talked a little while and Stanley said how much money, and I told him $22.50; he wanted to know how soon I had to have it and I told him Saturday; I suppose it was about Wednesday when I was talking to him; I went back to his place Saturday evening but he was not there and I did not get to see him until after Mr. Dry went down with me and he was arrested. I do not know what hogs Mr. Stanley had prior to January; I saw some hogs there in his pen when I was at Mr. Stanleys house asking about my hogs but I do not know they were his.

The last time I saw my hogs was a few days before Christmas 1934, down in the southeast part of Ottawa County, near Turkey Ford district. I live on the north side of the Delaware County line. It is rough country; the last time I saw them was down toward Mr. Hamas' place. I don't know how far Mr. Lankford's place is from Mr. Hamas' farm; there is quite a hilly country around there; it is a little over half a mile from Mr. Lankford's place to the Hamas farm; they are in Delaware County. The hogs had been gone from my place since two or three days before Christmas 1934; I do not know how old the pigs were. I went down to Mr. Bert Stanley's, the defendants, about the twentieth of January, I believe it was, wouldn't say for sure. My cousin Elmer Cunningham was with me. When we got to his home he was working on a Model T Ford; after we passed the time of day I told Bert I came to demand my money for the hogs; he said he didn't think they were my hogs or he wouldn't have taken them; I wouldn't say he stated they were his hogs; he agreed to pay me for them but he never talked about it any more; he went to a saw mill where his brother-in-law was working, and was working there when the sheriff went down and got him."

Hallie Lankford, testifying for the state, stated, "My name is Hallie Lankford; I live a mile and a half west of the Turkey Ford store; I know Alvie Cunningham and Bert Stanley; I have seen Dewey McElheany a few times; in the early part of January 1935, I was living about five miles from Bert Stanley's place and about four miles across the hills from Alvie Cunningham; about a quarter of a mile in Delaware County; in an open hilly country; in the early part of January there was a black sow and five shoats around my place; the sow would weigh about 250 or 260 pounds; I couldn't say about the mark in the left ear; the pigs were black and red spotted and I judge would weigh about sixty or seventy pounds; they were around my place about a month or more. Bert Stanley came down and got them. Dewey McElheany was with him; I could not say just what time in January it was when they got them; they were in a Ford Roadster, T model, they put them in the turtle back of the roadster; Bert Stanley was driving the car. Stanley told me he came down one time and I was not there, and he could not get hold of the hogs; he left word for me something about if he could not get hold of them for me to butcher them and he would give me half of them. I was working during the day, and would come home in the dark, leaving by daylight; I told him if he would come down I would help him catch them; I was not acquainted with Stanley at the time; he first came down and talked with me a short while before Christmas 1934; these hogs had been running around my place for something like a month, and running down in the low bottom near my house most of the time; the Hamas place is something like three or four miles from my place; the Cunningham place is something like three or four miles right over the hills, to go around the road to get to his place I expect would be twelve or fourteen miles. Stanley lived on the road going around to the Cunningham place a little over half way; traveling back from the Cunningham house along the road to the Stanley house is something like four or five miles. I don't know how many times Stanley was down inquiring for the hogs; he came and got the sow once and she came back; I helped him load her one time; Stanley came down one morning about daylight as I was starting to work, and my nephew helped him load her that time; Stanley told me they were his hogs and asked me to help butcher them; he asked me whether or not they were damaging me, and I told him there would be no damage if he could get them and take them away. Stanley got the hogs after Christmas; the sow was fat and the pigs were just in fair shape."

Dewey McElheany, testifying for the state stated, "I am acquainted with Bert Stanley; at the time of the alleged crime I was living about two hundred yards south of him, and about a half mile from Alvie Cunningham; I went with Bert Stanley to Hallie Lankfords place after some hogs some time in January; Stanley said he had a sow and four or five shoats; he said he would give me half the hogs if I would help him butcher them; we first went down on Sunday night, and the hogs were not up and we did not get them; we went back early Monday morning, the hogs were there and we loaded the sow in the turtle back of the car and took her to Stanley's place and butchered her; we went back later and got four of the shoats, and hauled them in the same car we hauled the sow in; we put them in a pen and they got out and we went back later in the week and got them; I would say the sow would weigh around 175 to 200 pounds. Russell Cunningham, who is a cousin of Alvie Cunningham, Charley Frost, and one of my brothers came down to Stanley's while we were butchering. Joe McElheany and Elbert Martin was also there. Bert McCarkell helped us load the sow in the car; Mr. Lankford was not there, he had gone to work."

Russell Cunningham called as a witness stated, "I am a cousin of Alvie Cunningham; I lived in the same neighborhood with Alvie last January, near Bert Stanleys; I was at Bert's place in January when they was doing some butchering; I do not remember the date; when I got there Dewey and Bert were fixing to kill a black sow, I judge she would weigh about 240 or 250 pounds."

Elmer Cunningham stated, "I am a cousin of Alvie Cunningham; I knew Bert Stanley; I went with Alvie to Stanley's house to see about some hogs some time in January 1935; Alvie asked him what he was going to do about the hogs; Stanley said, Alvie if I had known these were your hogs I would not have taken them; Alvie told him he wanted pay for his hogs, if you do there will be nothing further said about it, if you don't I will have to turn you over to the law.

Bert asked him how long he could wait for the money, and he said Saturday; and Alvie said, I will be back by here Saturday afternoon between four and five o'clock; I live near Alvie and know he had some hogs at that time but I do not know how many; he had a black sow. I am a cousin of Russell Cunningham."

Joe McElheany testifying in substance stated, "I know Bert...