Turner v. State

• Decision Date: 10 May 1976
• Docket Number: No. F--76--16,F--76--16
• Citation: 549 P.2d 1346
• Parties: Larry Dean TURNER, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1346

549 P.2d 1346

Larry Dean TURNER, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--76--16.

Court of Criminal Appeals of Oklahoma.

May 10, 1976.

Rehearing Denied June 2, 1976.

Denver W. Meacham, II, Meacham, Meacham & Meacham, Clinton, for appellant.

Larry Derryberry, Atty. Gen., Michael Jackson, Asst. Atty. Gen., for appellee.

OPINION

BLISS, Judge:

Appellant, Larry Dean Turner, hereinafter referred to as defendant, was charged in the District Court, Custer County, Oklahoma, for the offense of Attempted Larceny of Domestic Animals, in violation of 21 O.S.1971, § 1716. Defendant filed a motion for change of venue which was sustained by the trial court and the cause was removed to Ellis County, Oklahoma, where in Case No. CRF--75--5, the defendant was tried and convicted before a jury for the offense charged. His punishment was fixed at a term of ninety (90) days under the direction and control of the Department of Corrections of the State of Oklahoma and from this judgment and sentence a timely appeal has been prefected to this Court.

Briefly stated, the evidence adduced at trial revealed that on the 6th day of March, 1974, at approximately 7:00 a.m. and while still dark, Verner Heibert, on his way to work, drove by his cattle lots located on some land on the north side of the access road to I--40, approximately three miles west of Weatherford. The acreage included a yard of approximately four acres and contained a hay barn, self-feeder, hay shed, watering facilities, holding pen with a rampless loading chute and various other buildings and equipment. The yard was fenced for utilization as cattle lots and there was access on three sides to the surrounding wheat fields, wherein the cattle often grazed. That morning, upon approaching the cattle lots from the west, he observed a U-Haul truck backed up to the loading chute, or catch pens, adjacent to the cattle lots. Without honking or making any effort to interfere with the truck, Heibert turned around and proceeded to the nearby home of Winston Gates. Gates retrieved his pistol and together they drove back to the cattle lots where they found the yard gate open and the truck gone. They proceeded east on the access road and shortly they came upon a U-Haul truck similar to the one which Heibert had observed. The U-Haul truck finally turned onto Interstate 40 east and Heibert and Gates pursued, finally overtaking the truck. Gates motioned with his pistol for the driver to pull over to the side of the road. When the driver of the truck bent over and failed to stop, Heibert and Gates backed off and followed the truck until they reached a spot where Gates could get out and call the Highway Patrol. Thereafter, Heibert continued to pursue the truck alone until it was stopped by the Highway Patrol near El Reno. The driver, the defendant herein, then got out and opened up the back of the truck which was empty except for a furniture dolly. What appeared to be small amounts of manure were found on the ramp which pulled out from underneath the truck, on the rear tires, and on the mud flaps and floorboard of the truck. Samples of the soil and manure from the truck and the Heibert farm were submitted to the Oklahoma Bureau of Investigation, but no suitable comparison of the samples could be made. After the defendant's arrest at approximately 10:30 a.m., Heibert returned to his farm and discovered that the hay barn door was open, the cattle had been in the hay barn, some bales of hay had been moved, the cattle had evidently been fed and some gate panels were not in their normal positions. Tire tracks and a footprint were found in the vicinity of the loading chute and cattle tracks were found in the yard area. Also, no cattle were missing.

The Custer County Sheriff's testimony revealed that the tire tracks found in the yard were similar to the tire tracks made by the tires on the U-Haul truck, and a footprint which was found in the yard was similar to the right shoe of the defendant. The State then rested and the defendant presented no evidence.

The defendant's first assignment of error asserts that the trial court erred in overruling the defendant's motion to quash. The defendant argues that the evidence presented at the preliminary hearing was insufficient from which the trial court could properly commit the defendant for trial under its authority in 22 O.S.1971, § 264. ¹

The evidence at the preliminary hearing essentially consisted of Verner Heibert's testimony which revealed his observation of the U-Haul truck on the morning in question and also the physical condition of his farm on that morning in relation to the physical condition of the farm when he had been there the evening before. His investigation of the farm that morning revealed various gates of the lot which had been open on the night before, closed that morning, and various steel panels used to close the gates at different locations on the cattle lot, for chasing cattle, were not in their normal positions. Testimony further revealed footprints and tire tracks in the yard, and also that bales of hay had been moved for apparent feeding of the cattle, as he had not been feeding them himself. He also stated that the hay barn door was open and that one gate was swinging loose. Richard Mueller testified at the preliminary hearing that he was Undersheriff of Custer County and that in response to a call relating to an attempt to steal some cattle, he proceeded to Heibert's farm at approximately 9:00 a.m. on March 6, 1974, and an investigation revealed a gate down, various truck tracks, leading up to a loading chute, and also footprints. He testified he made casts of the tire tracks and a footprint and that in his opinion the cast of the truck tracks at Heibert's farm were the same as casts which were made of the U-Haul truck defendant was driving at the time of his apprehension. Undersheriff Mueller's testimony further revealed that a cast of a footprint taken from the Heibert farm was the same as a cast taken of the defendant's right shoe which he was wearing when apprehended.

This Court, in State v. Harris, 44 Okl.Cr. 116, 279 P. 925 (1929), quoted with approval State v. Bell, 13 Okl.Cr. 664, 166 P. 451, as follows:

"A motion to set aside an information on the ground that the proof offered at the examining trial is insufficient to establish the commission of the crime charged is addressed to the sound discretion of the trial court. . . ."

Also see, State v. Adams, Okl.Cr., 400 P.2d 467 (1965), and State v. Edmondson, Okl.Cr., 536 P.2d 386 (1975). Also, the State is not required to present evidence at the preliminary hearing which would be sufficient to convict at trial, and there is a presumption that the State will strengthen its evidence at trial. See, McAllister v. State, 97 Okl.Cr. 167, 260 P.2d 454 (1973). Certainly, the State may meet its burden under 22 O.S.1971, § 264, by circumstantial evidence and such was done in this case.

A careful review of the transcript of the testimony taken at the preliminary examination reveals sufficient circumstantial evidence from which the examining magistrate was convinced that a public offense had been committed and that there was sufficient cause to believe the defendant committed the offense. Such ruling being in the sound discretion of the examining magistrate, we find no reason to disturb his ruling at this time. For this reason we find the defendant's first assignment of error to be without merit.

The defendant's second assignment of error asserts that the trial court erred in overruling defendant's demurrer to the evidence and failing to direct a verdict of not guilty for the reason that the evidence presented at trial was wholly insufficient to prove defendant's guilt of the crime charged beyond a reasonable doubt. Defendant cites Kidd v. State, Okl.Cr., 462 P.2d 281 (1969), wherein this Court found that three elements must be proved in order to establish that an attempted crime was committed. The three essential elements requisite are, '(1) intent, (2) some overt act toward the commission of the crime, and (3) failure to consummate.' The State concurs in the defendant's citation of law but argues that circumstantial evidence of proof of these elements is sufficient on which a jury may make a finding of guilt. See, Hawkins v. State, Okl.Cr., 510 P.2d 693 (1973), and Parks v. State, Okl.Cr., 529 P.2d 513 (1974).

After a careful examination of the record and in consideration of the particular facts of the case herein stated, we are of the opinion that sufficient competent evidence existed from which the jury might properly determine that the defendant was guilty as charged. See, Jones v. State, Okl.Cr., 468 P.2d 805 (1970). The State...