Ashley v. State

1974 OK CR 73, 520 P.2d 686, 1974 Okla. Crim. App. LEXIS 336
CourtCourt of Criminal Appeals of Oklahoma
DecidedApril 10, 1974
DocketNo. F-73-150
StatusPublished

This text of 1974 OK CR 73 (Ashley v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ashley v. State, 1974 OK CR 73, 520 P.2d 686, 1974 Okla. Crim. App. LEXIS 336 (Okla. Ct. App. 1974).

Opinion

OPINION

BLISS, Presiding Judge:

In the District Court, Pontotoc County, Case No. CRF-71-152, appellant, R. B. Ashley, hereinafter referred to as defendant, was charged, tried and convicted for the offense of Larceny of Domestic Animals. His punishment was fixed at four (4) years imprisonment. From that judgment and sentence, he has perfected his timely appeal to this Court.

The evidence adduced at trial involved the testimony of sixteen witnesses. The State’s first witness, Hershel Brewer, testified that on November 4, 1971, he was employed as a pasture rider for Winrock Farms. On this date, an inspection of the herd revealed thirty-three head of cattle were missing. After determining the cattle to be missing, Brewer investigated the area and his investigation revealed two sets of unusual tire marks nearby and some reddish-brown paint traces on the loading shoot on that property. Brewer testified that on November 11, 1971, he observed and identified some of these cattle on pasture land located in Oklahoma County. Brewer identified State’s Exhibits 1-6 as photographs of those calves he was able to identify at that time. Further, he noted the lower one-half of each of the calves ears had been removed in an apparent attempt to destroy registration numbers.

Dr. G. T. Easley testified he was the Winrock Farms veterinarian at the time these cattle were taken. In addition to corroborating Brewer’s testimony, Easley stated each of the cattle removed from the property was registered and had four digit registration numbers tatooed in its ears. On November 11, while on pasture property located in Oklahoma County, Easley observed and identified the thirty-three head of cattle found in Oklahoma County to be those cattle removed from the Winrock Farms. Further, Easley’s testimony revealed the specific details upon which he made this identification.

Codefendant James Mooney testified that on the evening of November 3, 1971, he received a call from defendant requesting him to bring a trailer and meet him south of Roff, Oklahoma. Mooney stated he had defendant’s goose-neck trailer which he hooked up to his own white Chevrolet pick-up and met the defendant at the designated location. Upon meeting defendant at the location, Mooney observed that defendant was driving a red pick-up, pulling a goose-necked trailer. The pair then drove from that location to the scene in [688]*688defendant’s pick-up. After arriving at the scene, they removed the gate hinges, entered the property, and corralled approximately thirty-three heifers. Thereafter, they drove to their meeting place, reattached the trailer to defendant’s pick-up, and proceeded back to the corral. Upon arrival they loaded both trailer and left the scene. While enroute from the Win-rock property, they drove through Sulphur, Oklahoma, at approximately midnight that same night. At approximately 1:00 a. m. on the 4th of November, they stopped at Ruby’s Truck-Stop on Highway 77, a short distance from Purcell, Oklahoma. At this truck-stop they filled their pick-ups with gasoline and stopped to eat in the truck-stop restaurant. After the truck-stop attendant informed Mooney that he was unable to repair a flat tire on the trailer he was pulling, Mooney and defendant drove to a Texaco Service Station located in the northern part of Purcell. After the flat was repaired, the pair drove to the above mentioned property located near Edmond in Oklahoma County and unloaded the cattle. On the following day they returned, dehorned the cattle, and removed the lower portion of the ears of each calf.

Mr. M. L. McClain testified he leased eighty acres of land located in the northern part of Oklahoma County to James Mooney. He testified he later observed the above mentioned cattle on the property.

Bill Martin testified that in November of 1971 he was employed as a service station attendant at Ruby’s Truck-Stop, previously mentioned herein. Martin testified that in the early part of November, two individuals drove into the service station driving separate pick-ups and pulling trailers loaded with cattle. Martin stated he repaired a gas filter on one pick-up, but was unable to change the flat tire on one of .the trailers as he did not have the proper equipment. He directed the driver to the Texaco Service Station located in Purcell. 'Finally, Martin testified he was unable to identify the defendant as one of the drivers.

Larry Don Eager testified he lived approximately one-fourth of a mile north and one-fourth of a mile east of the Winrock Farms. At approximately 11:00 to 11:30 p. m. on November 3, 1971, he observed two pick-up trucks pulling trailers loaded with cattle. Both trucks were proceeding from the direction of the Winrock Farms. Eager identified one of the trailers as a goose-neck trailer and observed it was a brownish-red color. However, he was unable to describe the other trailer.

Kenneth Winters testified in early November defendant borrowed from him a white over reddish-orange trailer.

Joe Raimer testified that during the month of November he was employed as a policeman with the city of Sulphur, Oklahoma. On the evening of the 3rd of November, he observed the above mentioned pick-ups pulling trailers pass through the Sulphur city limits. Raimer testified that he recognized James Mooney as the driver of the white pick-up, but was unable to recognize the other driver.

Betty A. Taylor testified that on November 4, 1971, she worked as a cook at Ruby’s Truck-Stop. At approximately 1:30 a. m. that date she observed defendant and codefendant Mooney eating together in the restaurant.

Albert Landsale testified he was employed in early November of 1971 at Bill’s Texaco Service Station located in Purcell, Oklahoma. At approximately 2:00 to 3:00 a. m. two men driving two separate pickups pulling trailers loaded with cattle, drove into the station. He repaired a flat tire on the trailer that codefendant Mooney was driving. He identified the defendant as the driver of the other pick-up.

Burl Griffin and Kenneth Orsborn, Pon-totoc County Sheriff and Deputy Sheriff, removed paint samples from the gate of the corral located at the Winrock Farms on the pasture land where these cattle were taken. Orsborn identified State’s Exhibit 14 as being the paint samples which he removed from the gate. He identified [689]*689State’s Exhibit IS as paint samples removed from the Winters’ trailer.

Bob Felton, Winrock Farms Manager, testified that he gave no one permission to remove the cattle from the premises.

William J. Caveny, Oklahoma State Bureau of Investigation Chemist, testified that State’s Exhibits 14 and 15 were determined from his tests to be comparable with no distinguishable differences between the samples.

James Mooney was again recalled to testify and testified State’s Exhibit 19, a check for $100 with defendant as drawer of the instrument, was cashed and the money was used to pay the first month’s rental on the leased property.

Thereafter the State rested.

Thereafter the defense rested without presentation of evidence.

Defense counsel argues in his first proposition that the trial judge abused his discretion in not granting a continuance on the basis of adverse pretrial publicity. In the case of Shapard v. State, Okl.Cr., 437 P.2d 565 (1967), this Court adopted the language of United States v. Hoffa, 156 F.Supp. 495 (S.D.N.Y.1957), which states as follows:

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Related

Sandefur v. State
1969 OK CR 265 (Court of Criminal Appeals of Oklahoma, 1969)
Griffin v. State
1969 OK CR 113 (Court of Criminal Appeals of Oklahoma, 1969)
Shapard v. State
1967 OK CR 197 (Court of Criminal Appeals of Oklahoma, 1967)
United States v. Hoffa
156 F. Supp. 495 (S.D. New York, 1957)
Varner v. State
1929 OK CR 34 (Court of Criminal Appeals of Oklahoma, 1929)
Box v. State
1973 OK CR 65 (Court of Criminal Appeals of Oklahoma, 1973)

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Bluebook (online)
1974 OK CR 73, 520 P.2d 686, 1974 Okla. Crim. App. LEXIS 336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ashley-v-state-oklacrimapp-1974.