Stone v. State

• Decision Date: 22 May 1968
• Docket Number: No. A--14504,A--14504
• Citation: 442 P.2d 519
• Parties: Alfred Eugene STONE and Theodore Ray Perry, Plaintiffs in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 519

442 P.2d 519

Alfred Eugene STONE and Theodore Ray Perry, Plaintiffs in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--14504.

Court of Criminal Appeals of Oklahoma.

May 22, 1968.

Rehearing Denied June 10, 1968.

Second Rehearing Denied July 3, 1968.

Syllabus by the Court

1. Every person who breaks and enters any building or any part of any building, room, booth, tent, railroad car, automobile, truck, trailer, vessel or other structure * * * in which any property is kept, * * * with intent to steal therein or to commit any felony, is guilty of burglary in the second degree. Title 21, O.S.A. § 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.

3. An indictment, the averments of which are stated in the disjunctive, as a general rule, is fatally defective. Disjunctive allegations are those which charge that the defendant did one thing or another. The rule is that, whenever the word 'or' would leave the averment uncertain as to which of two or more things is meant, it is inadmissible.

4. The test is whether the defendant was misled by the information and whether conviction under such information exposed him to the possibility of being later put in jeopardy again for the same offense.

5. In the instant case, the information sufficiently alleges every element of offense charged and sufficiently apprises defendant of what he must be prepared to meet.

6. Volunteered statements of any kind are not barred by the Fifth Amendment, nor their admissibility affected by Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

7. The trial court, in giving its instruction, is only bound to give instructions on those issues of law which have a bearing to the evidence of the case.

8. Where the trial court has instructed within the law and evidence thus established, it is neither the court's duty nor its right to instruct on speculative theories of counsel unsupported either by the evidence or the law.

9. Instructions must be read as a whole, and when considered as a whole, if they fairly and correctly state the law applicable to the issues presented by the evidence, they will be sufficient.

10. The general rule of admissibility of photographs into evidence is that they must be shown to be a faithful representation of the place or subject, as it existed at the time involved in the controversy. Once this is established, the admissibility is a matter addressed to the discretion of the trial court.

11. Evidence discovered by an officer when he is in a place where he has a legal right to be is admissible to support a charge where such evidence would be involved.

12. Only those questions which were raised in the trial court, and on which adverse rulings were made and exceptions taken, and which were then incorporated into motion for new trial, and assigned as error in petition in error will be considered on appeal.

Appeal from the District Court of Custer County; Charles M. Wilson, Judge.

Alfred Eugene Stone and Theodore Ray Perry were convicted of the crime of Burglary Second Degree, and appeal. Affirmed.

Wendell E. Wightman, Oklahoma City, for plaintiffs in error.

G. T. Blankenship, Atty. Gen., Hugh H. Collum, Asst. Atty. Gen., for defendant in error.

NIX, Presiding Judge:

The Plaintiffs in Error, Theodore Ray Perry and Alfred Eugene Stone, hereinafter referred to as the defendants were charged by information in the District Court of Custer County with the crime of Burglary Second Degree. They were tried by a jury, found guilty, and their punishment assessed at Seven Years each in the penitentiary. From that judgment and sentence they have appealed to this Court.

The facts of the case, briefly, as recited in the brief of the Attorney General, are as follows:

'The State established its case by the testimony of eight witnesses. R. T. Sauer, an employee of the S & D Drug Store, testified that he had closed the Drug Store at approximately 6:00 P.M. on December 11, 1966. He testified that the coin drawer was in the cash register, that the outside light over the rear door was on and that all outside doors, including a rear screen door, were closed and locked. C. F. Cook, also an employee of the drug store, testified that he went to the drug store at about 6:45 p.m. on the same date to pick up a package for a late customer. He testified that before he left the store he rechecked all of the outside doors and found them to be locked. Mayo Darnell, an owner of the S & D Drug Store, testified that the building was in Custer County, Oklahoma, and that personal property of great value was kept therein. After the burglary, Mr. Darnell was called to the store by police officers; he then testified that he observed the rear door to the building was marked and scratched, that there were certain tools not used in the operation of his business found inside the building, and that the coin drawer had been removed from the cash register. Ferd Earney, a Clinton Police Dispatcher, testified that he had directed police unit 11 to the S & D Drug Store at approximately 9:30 p.m. on December 11, 1966, after he had heard unusual noises over the intercom system which was connected between the Police Department and the S & D Drug Store. Officer T. M. McDougall of the Clinton Police Department testified that he was on duty the night of December 11, 1966. As part of their duties, he and his partner, Officer Albert Hayes, had checked the S & D Drug Store between 8:00 and 8:30 p.m. and found that all doors and windows were secure. Later that same evening the officer testified that he and his partner received a radio call to check the drug store. They drove to the rear of the store where the officer testified he observed the defendant Stone run into a dark space between the S & D Drug Store and an adjoining building. The officer then ordered the man out. Both defendants, Stone and Perry, came out from the dark area. The officer also testified that he found the rear screen door and rear main door open and that there were pry marks on them. Upon investigation he found several tools inside the building which could have produced the pry marks. The defendant's car was next to the building; the officer testified that more tools were found in and around the parked car. He took photographs of the rear doors and the tools which were found in the building and in and around the defendant's car. The photographs, after proper authentication, were admitted into evidence; the tools were identified and also admitted into evidence. Officer Albert Hayes of the Clinton Police Department also testified. His testimony was substantially the same as that of Officer McDougall. The testimony of Deputy Sheriff Richard Mueller helped establish the chain of custody of the burglary tools. Monte Green testified that he had seen the defendants in the car found behind the burglarized store on the same day.

This was, substantially, the case presented to the jury, as the defendants offered no evidence.

Defendants have raised many allegations of error to this Court, most of which are not properly raised on appeal. We will attempt to discuss all of the meritorious allegations, however, the brief filed herein is a little difficult to follow, as the allegations are intermingled one with another. The Attorney General, in his brief, has distinguished the propositions in the following order, and we will discuss them herein in this order.

First, that the information did not state a cause of action for Burglary Second Degree. Defendants allege that the information only substantiates a charge of Breaking and Entering, or at the most, Attempted Burglary. The information complained of provides:

'* * * that Theodore Ray Perry and Alfred Eugene Stone on the 11th day of December A.D. 1966, in Custer County, State of Oklahoma, and within the jurisdiction of this Court, did then and there commit the offense of Burglary in the Second Degree in manner and form as follows, to-wit: That on or about the date aforesaid, in the County and State, aforesaid, the defendants, and each of them, did wrongfully, willfully, feloniously and burglariously, while acting in concert each with the other, in the night time, break and enter, into a certain building located at 405 Frisco Avenue in Clinton, Custer County, Oklahoma, owned by Elsie Darnell and Bertha Alma Stanley and in possession of Paul Cook and Mayo Darnell, dba S & D Drug, in which building personal property of value was kept and contained, by breaking open an outer rear door in the said building without the consent of the owner or occupants of said building with the willful and felonious intent to steal said property. * * *'

The defendants were charged, tried, and convicted under the provisions of Title 21, O.S.A. § 1435, which reads:

'Every person who breaks and enters any building or any part of any building, room, booth, tent, railroad car, automobile, truck, trailer, vessel or other structure * * * in which any property is kept, * * * with intent to steal therein or to commit any felony, is guilty of burglary in the second degree.'

This Court has had occasion to construe this statute in a number of appeals, the most recent being the case of A. L. Grimes and Earnest Edmondson, appealed from the District Court of Pittsburg County, and cited as Grimes v. State, Okl.Cr., 377 P.2d 847. In this opinion, the Honorable Judge Bussey stated:

'In construing this statute this Court stated in Smith v. State, Okl. Cr., 347 P.2d 232, Syllabus II:

'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...