Stanley v. State, A-11299

• Decision Date: 28 March 1951
• Docket Number: No. A-11299,A-11299
• Citation: 94 Okla.Crim. 122,230 P.2d 738
• Parties: STANLEY et al. v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 738

230 P.2d 738

94 Okla.Crim. 122

STANLEY et al. v. STATE.

No. A-11299.

Criminal Court of Appeals of Oklahoma.

March 28, 1951.

Rehearing Denied May 16, 1951.

Syllabus by the Court.

1. The admission of testimony which is of doubtful competency, and which is afterwards by the court excluded out of an abundance of caution, ordinarily is not error sufficiently prejudicial to justify a reversal.

2. A judgment will not be reversed on appeal on the ground of improper introduction of evidence, where the court sustains the objection of the defendant to the evidence and directs the jury not to consider the same, unless, in the opinion of the court after an examination of the entire record, it appears there has probably been a miscarriage of justice or a violation of the constitutional rights guaranteed to the defendant. In considering the entire record, the court may consider whether justice demands that the judgment and sentence should be modified.

3. A conviction will not be reversed for alleged misconduct of the prosecuting attorney unless this court can see that the prosecuting attorney was not only guilty of misconduct, but that such misconduct might in some degree have influenced the jury.

4. A trial court is not required to be a mere umpire, but in the interest of justice, and to see that both sides have a fair and impartial trial, may interrogate a witness, but in so doing must refrain from allowing his action or words to indicate to the jury his opinion of the guilt or innocence of the defendant or the credibility of any witness.

5. A trial judge has the right, in the exercise of his discretion, to ask of any witness such questions as will tend to elicit the truth, and so long as the judge does not, by his questions or conduct, indicate his views as to the matters at issue, a defendant will not be heard to complain of any question asked by him which is reasonably calculated to elicit the truth.

7. It is not error for the trial court to refuse to give requested instructions if the law covered by the requested instructions is fully and fairly covered by the court's general instructions.

Steele & Boatman, Okmulgee, for plaintiff in error.

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

POWELL, Judge.

The plaintiffs in error, Wilson Stanley and Dan Martin, who will hereinafter be referred to as defendants, were charged by information filed in the district court of Okmulgee County for the crime of larceny of domestic animals; were tried before a jury, convicted, and were each sentenced to serve a term of eight years in the State Penitentiary. Appeal has been duly perfected to this court.

The evidence on behalf of the State developed that one Frank Nash, a colored farmer living in Creek County, eight miles west of Beggs, along about April 1, 1948, had a light cream colored Jersey cow, three years old, stray from his farm; that there was a 'W' brand on her right hip, that she had a 'little knot' or swollen place on the knee of her right front leg; and that she had short horns, one straight out and one curving down a little.

Nash testified that in June, 1948, he went with a deputy sheriff to the defendant Stanley's farm and there he found his cow; that a man named Belford had advised him that the cow in question might be on the place where found. He further testified that the defendant claimed the cow as his own, that he went back the second time to see the cow, that being in September, and she was a little fleshier at that time. Nash further testified that he purchased the cow in the summer of 1947 and she was already branded. He stated that he did not give anyone permission to take his cow and that he signed a complaint against the defendants after he viewed the cow in question.

R. A. Wheeler testified that he lived five and a half miles west, and a mile south of Beggs, in Okmulgee County, from January to June, 1948, farming; that in April or May a stray yellow Jersey cow came on his place and took up with seven head of cattle that he had; that she had a 'W' brand on her right hip and had short horns; that he told one Charley Aldrich that if he learned of anyone having a cow missing that he had a stray on his place; that he described the cow to Mr. Aldrich; that thereafter Mr. Wilson Stanley and Mr. Dan Martin, the defendants, came out, and Mr. Stanley stated: 'He had seen Charley Aldrich who told him about the cow being at my place; he said he had lost a cow answering that description, he described the cow, said it was his.' Witness further testified that the defendants thereafter viewed the cow and that both stated it was Wilson Stanley's cow; that they loaded the cow in Stanley's pick-up truck, and that Sheriff Kirby was out to see him the next day about the cow. Witness had not seen the cow since the defendants took her from his place.

Slew Thompson testified that he lived ten miles northwest of Beggs in Okmulgee County; that he lived about two and a half miles from Frank Nash and was engaged in farming and had a pasture that joined with one operated by Nash. That in January, 1948, a yellow Jersey cow with a 'W' brand on her right hip and a knot on her front right knee got into his pasture and fed with his cows for two weeks or ten days; that he saw her two or three times while she was feeding with his cows; that he thought that she had been dehorned and was a muley; that later a deputy sheriff took him to Wilson Stanley's pasture near Nuyaka and he identified the cow that had been on his place in January.

Jim Gleason testified that he had worked for Slew Thompson for ten years and that in the winter of 1948 a fawn-colored Jersey with a 'W' brand on her right hip, with a knot on a knee, and horns about ten inches long, got in Mr. Thompson's pasture. That he saw her every day for ten days to two weeks. That Frank Kash, who owned an adjoining pasture came and claimed the cow and got her; that the next time witness saw this cow she was in a pasture west of Okmulgee; that a deputy sheriff took him there to see if he could identify the cow as the one that had gotten in Mr. Thompson's pasture and was removed by Nash. Witness swore the cow in the Stanley pasture to be the cow he had known as Nash's cow.

Sheriff Jim Kirby testified that he investigated the case of the missing cow of Frank Nash; that he located the cow described on Wilson Stanley's farm and told Stanley not to dispose of her.

The State produced three additional witnesses, D. M. Sadler, Booker T. Washington, and Jake Gooden to show that the defendants had a system of finding out about stray cattle and claiming all strays they could learn about, and attempted to establish such proposition by proving another instance happening about the same time of the Nash matter. The court permitted the witnesses to testify, reserving his ruling. Thereafter, counsel for the defendants moved that the court strike from the record the entire testimony of the three witnesses, Sadler, Washington and Gooden. After agreement out of the presence of the jury, the jury was returned into the jury box and the court announced: 'The motion of the defendants with reference to striking the testimony of the witnesses named is sustained, and the jury will not consider the testimony of those last three witnesses with reference to the other cow.'

We conclude that the ruling of the court was correct. The question of whether or not the defendants were prejudiced in spite of the court's instruction to the jury to disregard the testimony of the three witnesses in question will be considered later.

At this point the State rested and the defendants interposed a demurrer to the evidence of the State, which was by the court overruled.

Neither of the defendants testified, but did offer as witnesses Lance Duncan, Barney Douglas and Harry Ledbetter.

Lance Duncan stated that he lived eight miles south of Nuyaka, was engaged in farming and had been since 1945; that he was familiar with the cow in controversy, having purchased her at a sale in Henryetta in April or May, 1945, when the animal was just a calf four or five months old, and in his words, 'wouldn't have weighed much over a hundred, was a pot-bellied stunt.' He stated that he sold the animal in February, 1947, to Wilson Stanley for $80. He then identified a check dated Feb. 2, 1947, as one that Mr. Stanley had given him for the cow. Counsel thereupon offered the check in evidence, and the court remarked: 'I am going to let it go in for what it is worth. It doesn't say it is for a cow. Let it be considered for what it is worth. It is admitted.'

Counsel for the defendants excepted to the remarks of the court as commenting on the evidence.

Witness Duncan stated that defendant Stanley did not immediately take the animal, but she stayed in his pasture quite a while. Witness stated that after he purchased the Jersey calf she was in his horse lot and her right front knee became injured by being kicked by a horse. He further stated that she had small Jersey horns. He further testified that he had recently seen the animal and noticed that her right horn had been slit.

On cross-examination witness admitted that since 1945 he had lived on a farm belonging to the defendant Stanley.

Barney Douglas, a colored farmer living at Nuyaka testified that in 1947 he saw the cow involved, in witness Lance Duncan's pasture. He was asked: 'What particular occasion did you have to see the animal? A. They were in the pasture by the side of the road; he got me to move them to another pasture, down to the bottoms.' He stated that he last saw the animal at Duncan's in June, 1947; that he had recently seen the cow in the Wilson Stanley pasture, the only difference in her appearance being that she had one ear slit.

Harry Ledbetter testified that he lived two miles south, a mile east and three miles south of Nuyaka; that in November, 1947, he lived over near Okfuskee; and that he was...