Wing v. State, A-12124

• Decision Date: 23 February 1955
• Docket Number: No. A-12124,A-12124
• Citation: 280 P.2d 740
• Parties: Herman Eugene WING, Plaintiff 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 740

280 P.2d 740

Herman Eugene WING, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12124.

Criminal Court of Appeals of Oklahoma.

Feb. 23, 1955.

Rehearing Denied April 6, 1955.

Syllabus by the Court.

1. Where conviction rests upon circumstantial evidence and circumstances are proven from which the reasonable and logicial inference of guilt clearly arises and which excludes any reasonable hypothesis except guilt of the defendant, although the evidence is conflicting, Criminal Court of Appeals will not disturb the verdict for the insufficiency of the evidence.

2. A witness may be impeached by showing that he has made, out of court, statements material to the issues contradictory of his testimony at the trial. Where the attention of the witness is first called to the time, place, and persons involved in the supposed contradictory statements in a manner sufficiently definite to reasonably refresh his recollection, and to call his attention to the substance of the subject matter and statements upon which it is intended to impeach him, the predicate is sufficient.

3. Where a party seeks to impeach a witness by showing prior statements contrary to his testimony, which is excluded because no proper predicate is laid, a request for a recall of the witness, in order to lay a predicate, should be interposed by counsel for the accused.

4. The right of argument contemplates a liberal freedom of speech, and the range of discussion, illustration, and argumentation is wide. Counsel for both the State and the defendant have a right to discuss fully from their standpoint the evidence and inferences and deductions arising from it. It is only when argument by counsel for the State is grossly improper and unwarranted upon some point which may have affected defendant's rights that a reversal can be based on improper argument.

5. In a criminal prosecution the trial judge has the statutory duty to instruct the jury on the salient features of the law raised by the evidence, without a request from the defendant. Tit. 22 O.S.1951 § 856.

6. Record examined and found that the defense interposed by the accused was an alibi, and that the court gave a proper instruction covering such defense, as well as a proper instruction covering circumstantial evidence, which were the salient features of law raised by the evidence.

7. A trial court is not required to instruct on every possible question that might arise.

Appeal from the District Court of Cherokee County, Oklahoma; Francis Stewart, Judge.

Herman Eugene Wing was convicted of the crime of burglary in the second degree, his punishment fixed at two years in the State Penitentiary, and he appeals. Affirmed.

W. C. Henneberry, Tulsa, for plaintiff in error.

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

POWELL, Judge.

Herman Eugene Wing was charged jointly with one Max Hobson by amended information filed in the district court of Cherokee County with the crime of burglary in the second degree; the parties were tried separately. Defendant Wing was found guilty and his punishment fixed at two years confinement in the State Penitentiary. Codefendant Hobson on trial was also found guilty. See the case of Hobson v. State, Okl.Cr., 280 P.2d 735.

The information had first charged burglary with explosives, a crime carrying punishment of a minimum of 20 years in the penitentiary, and a maximum of 50 years upon conviction, Tit. 21 O.S.1951 § 1441, whereas the crime as charged in the amended information carries punishment at not less than two years, and not more than seven years. Tit. 21 O.S.1951 § 1436(2).

One of the grounds advanced for reversal is the contention that the verdict of the jury is contrary to the law and the evidence, and that the court erred in not sustaining defendant's demurrer to the evidence, and in refusing to direct a verdict of acquittal. We shall treat this proposition first.

We have carefully read the entire record and find that though defendant's conviction came about by circumstantial evidence, that the conviction rests on evidence of circumstances from which a reasonable and logical inference of defendant's guilt clearly arises and which excludes any reasonable hypothesis except guilt, and though the evidence is conflicting, under such circumstances, the verdict of conviction will not on appeal be disturbed on the ground of insufficiency of the evidence. Sears v. State. 79 Okl.Cr. 437, 156 P.2d 145; Griffin v. State, 79 Okl.Cr. 85, 151 P.2d 812; Doty v. State, 88 Okl.Cr. 381, 203 P.2d 444; Gower v. State, 94 Okl.Cr. 184, 237 P.2d 162; Brumley v. State, 96 Okl.Cr. 97, 249 P.2d 471; Heath v. State, Okl.Cr., 278 P.2d 553.

We shall summarize such evidence as seems pertinent for determination of the issues.

On Sunday morning of May 31, 1953, Oscar Norwood, the night watchman-constable at Hulbert, Oklahoma, in performance of his duties and while driving about the business district noticed a strange car parked in the street some 57 steps from the rear of Squyres' store. He went to the car and looked it over and said that it was a '49 green Ford, two-seated car. He saw a new canvas glove in the car, and a pair of trousers and a 'T' shirt in the back seat. He also observed a flash light with a cracked lens. He noticed that the car bore an out-of-county license number, and witness said that he got the tag number and wrote it down in a little book. Shortly after this witness had driven on and parked in the middle of Main street, and heard an explosion, and he drove back to the green Ford, saw no one, so drove back up Main street and parked near the bank building, which was on the corner, and saw a man emerge from a three-foot passageway between Squyres' store and the Rogers Building. The man walked with a limp, and witness engaged him in conversation. Norwood identified a new straw hat later found near the bank corner and shown to have been stolen from the Squyres store that morning, and which witness stated was being worn by the man later identified as Max Hobson; and although the court ruled that witness might relate the conversation that he had with Hobson, this conversation was not related as witness was further questioned about the green Ford and got off on that subject. He said he again saw the green Ford, that it pulled out in the next block east while he was talking with Hobson, and witness got in his car and attempted to stop the Ford, but it was driven onto a gravel road and so much dust was stirred up that witness gave up the chase and drove by the home of Deputy Sheriff Jim D. Rogers and asked him to help investigate what had been happening. Witness told the deputy about the green Ford, and returned to look for the cripped man he had been talking to near the bank corner. He drove back of the Squyres building and noticed the back door was open. He went in and discovered that the safe had been blown open, and there was a light on in the store, and he then drove around and found deputy Rogers. Witness did not remember whether he gave Rogers the tag number of the green Ford or not. But deputy Rogers telephoned Sheriff Wayne Cunningham at Talequah that there had been a burglary and gave the sheriff the tag number of the car as 56-2756.

Deputy Jim D. Rogers testified that as he was driving to the business district of Hulbert he saw a green Ford being driven at a high rate of speed, that it made a left turn from the main street or highway and turned north, and that he observed the tag number at that time. He followed the car for a short distance on the gravel road, but turned back to Hulbert, talked with officer Norwood and it was after such conversation that he telephone the sheriff and gave him the description of the car, including the tag number. The gravel road led to Peggs near Locust Grove. Witness stated that later on in the day he again saw the green Ford in question and Sheriff Wayne Cunningham had possession of it, as well as the person of the defendant, who was under arrest.

Witness further testified to searching at certain points along the route of flight of the green Ford, and finding a pair of pants just over a wire fence in a field at a point 6 1/2 miles northeast of Locust Grove near the end of a dead-end road, and about 75 steps from the home of a man named King. The pair of pants was received in evidence and inside the left pocket and at another place was stamped the name 'Wing'. Witness also stated that he found a pair of cowboy boots near the pants, and also a 'T' shirt close by, just outside the fence. He also found at the same place a receipt in favor of the Squyres store for flowers, a watch, and in the ditch at the fence found four paper sacks, one containing pennies, one nickels, one dimes, and one quarters and half dollars.

Sheriff Cunningham testified that on the morning of May 31, 1953, at about 4:40 he got a call at Talequah from deputy Rogers at Hulbert. He stated that there was a gravel road going north from Hulbert to Peggs; and that Highway No. 82 runs in a northerly direction from Peggs to Talequah; that it was 19 miles from Talequah to Peggs. Witness further stated that officer Rogers gave him the description of an automobile and the route it was traveling, and that he then called the Highway Patrol station at Claremore and asked for a road block, and asked the local patrol at Talequah to go to Hulbert and stand by, and witness then drove rapidly to Locust Grove, and as he did so he noticed dust in low places along the gravelled road that intersects with Highway 82 near Peggs. The sheriff testified that he drove to Locust Grove and then made a 'U' turn and drove back the why he entered town on Highway 82; and that after he went south and made the first turn east, about 75 to 100 yards, he saw a car coming and he put his car across the road and got out and stopped the approaching car, which was a light green '49 Ford; that he recognized the driver...