Woods v. State
| Decision Date | 20 March 1968 |
| Docket Number | No. A--14199,A--14199 |
| Citation | 440 P.2d 994 |
| Parties | Jack (alias Jimmy) Rudolph WOODS, 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 |
Syllabus by the Court
1. An opening statement is, and purports to be, no more than an outline of the state's theory and the evidence expected to be offered in support thereof. The statement of incompetent or immaterial matter affords no ground for reversal, unless it appears that the statement was manifestly prejudicial.
2. Where a defendant fails to offer any evidence, the prosecutor is not prevented from discussing the evidence against him, and to state that such evidence is uncontradicted. Such argument would not be a violation of the statute forbidding comment on the fact that defendant did not testify.
3. Evidence of defendant's identity as one committing larceny held sufficient.
4. A conviction may be had on circumstantial evidence when all circumstances proven are consistent with each other and with hypothesis that defendant is guilty and inconsistent with every other rational hypothesis.
Appeal from the District Court of Grady County; Sam M. Williams, Judge.
Jack (alias Jimmy) Rudolph Woods was convicted of the crime of grand larceny, and appeals. Affirmed.
Red Ivy, Chickasha, for plaintiff in error.
G. T. Blankenship, Atty. Gen., Hugh H. Collum, Asst. Atty. Gen., for defendant in error.
The plaintiff in error, hereinafter referred to as defendant, was charged by information filed in the district court of Grady County with the crime of grand larceny; was tried before a jury, found guilty, and his punishment fixed at imprisonment in the state penitentiary for a term of one year and ten months. Appeal has been perfected to this Court.
The State, to support the conviction of the defendant, introduced the testimony of five witnesses.
Roy Carman, who signed the complaint before the justice of the peace, was the chief of police of the city of Chickasha on the date of the alleged crime, as well as at the time of the trial. He testified that he received a call from Pratt's Food Store on November 3, 1965 and went there immediately. When he arrived the manager of the store, Owen Ickman, and one Mike Keener, a clerk, had the defendant in charge.
Witness Carman learned that the accused was charged with having taken money from the cash register. He testified that the accused asked him to put him, the accused, under arrest, and take him to the police station. Witness identified the defendant as the man he arrested in the Pratt Food Store on the date named. Chief Carman stated he conducted an investigation, and learned that money was missing from the cash register; that the accused had thrown $57 in bills on the floor of the store, and this had been recovered. Chief Carman stated that he talked with other witnesses who were present in the store at the time the crime was committed.
On cross-examination Chief Carman stated that the manager of the store (Ickman) had the $57, which consisted of five $10 bills, one $5 and two $1 bills. That the bills were in the manager's office. He also stated that he was told that another patron in the store had picked up some of the money from the floor where defendant had thrown it, near the front door. The Chief of Police testified further that Owen Ickman, who was manager of the Pratt Food Store at the time the offense was committed, had died prior to the time of the trial.
Bill Tindell testified that he was a customer in the store at the time of this disturbance, and was behind the defendant at a check-out counter. He testified:
Witness Tindell identified the defendant as the man, in the store, who threw the money on the floor inside the store. He stated that he did not see the defendant take any money out of the cash register, but saw defendant, 'When he slung it back like that', and he saw the money fall when the defendant 'threw it back in the store.'
Mrs. Harry Sanders was also a customer in the store, and was checking out at one of the two check stands when she noticed the disturbance. This witness testified that the man identified as Mike Keener caught the defendant at the door, that defendant pulled his hand out of his pocket and said, "Here, you can have your money, let me go', and the money just went everywhere.' She identified the defendant as the man who threw the money on the floor. She stated, 'I went over and picked up some money outside and some inside, and I held it up high so that nobody would know that I hand't taken any of it, and finally the black-headed girl told me to lay it on the blond-headed girl's counter, which I did.'
On cross-examination this witness testified that she did not see the defendant take any money from the cash register.
Mrs. Gerri Keener testified that on the date in question she was a checker at Pratt's Foodway. That the defendant, whom she identified, came to her stand with a can of fruit, and asked if they had clothes-pins. While her husband, who was sacking groceries, went to the back of the store to get the clothes-pins, defendant asked her for some snuff, and when she turned around and reached down to get it, she heard a 'click' as metal on metal. She looked at the defendant, and he had a handful of money, and she saw him quickly stuff it in his pocket. She saw that the $10 bills were gone from her cash register, and when her husband returned with the clothes-pins, she whispered to him, 'The tens are gone'. Her husband rang the bell for the manager, and the defendant said, 'Check me out, check me out, I am in a hurry', and started to leave. That Mr. Keenan grabbed the defendant, who said, 'The lady said I took the money, but I didn't', and reached in his pocket and threw the money on the floor, and went out the door. Mrs. Keener said her husband pulled the defendant back into the store, and detained him until the police arrived.
Mr. Keener testified to about the same facts as did his wife. He also corroborated his wife's testimony that the defendant asked him to check him out, that he was in a hurry, and that defendant stated: , then threw the money down and stated: 'Here it is, mister, please let me go, please let me go.' Defendant started running out the door, but the witness said he caught and detained him. He testified on cross-examination that the defendant had the money in his pocket, and pulled it out and threw it on the floor.
Defendant did not testify, and offered no evidence.
Defendant, in his brief, sets out three assignments of error.
His first contention is that the county attorney committed error in his opening statement to the jury. We have carefully read this statement, and while it is not a model, this court has repeatedly held, as stated by Judge Doyle in the case of Sparkman v. State, 67 Okl.Cr. 245, 93 P.2d 1095 (), ninth paragraph of the syllabus:
And again, in Akins v. State, 91 Okl.Cr. 47, 215 P.2d 569:
'Ordinarily, error cannot be predicated upon the opening...
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