Box v. State

1973 OK CR 65, 506 P.2d 969, 1973 Okla. Crim. App. LEXIS 404
Court of Criminal Appeals of Oklahoma·Decided February 6, 1973·No. No. A-16717·Published·Cited by 1 cases

Opinion

OPINION

BLISS, Presiding Judge:

The appellant, C. S. Box, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Grady County for the offense of Larceny of Domestic Animals; his punishment was fixed at three (3) years imprisonment, and from that judgment and sentence, a timely appeal has been perfected to this Court.

At the trial, the testimony of Mr. Earl Campbell revealed that approximately two miles south of Tuttle, on Highway 37, Campbell owned property on which he raised cattle. At approximately 5:00 a. m. on March 23, 1970, a neighbor phoned Campbell and informed him that some of his cattle were on the highway near this property. Immediately, he drove to the property and moved those cattle back to pasture. On the following morning, several cows were bawling for their calves. Campbell checked his records and found three Black Angus bull calves and three Black Angus heifer calves were missing. Further he stated the missing calves were more particularly described to be ranging in weight from 150 to 200 pounds, one was spotted and five were black, and each calf was numbered by an ear tag with a number corresponding to a number assigned to its parent.

On Thursday of the week following the disappearance of these calves, Campbell ob[970]*970served the three bull calves at the Carl Heckes farm at El Reno, Oklahoma. He identified them, picking them from a herd of thirty to forty cattle. The three heifer calves were found on the Arthur Mueggen-burg farm at Okarche, Oklahoma. He again made his identification from a herd of twenty cattle on the lot. Campbell further stated that in both instances his identification was made on the basis of color, personal knowledge, and small holes in the calves’ ears left by the removal of the ear tags he used in numbering his calves for identification. After the calves were returned and unloaded on the Campbell property, the calves found and were accepted by their mothers. State’s Exhibits One through Nine, photographs of the calves, were introduced to show identification of the calves with their mothers. Campbell testified that he had never sold any of his cattle at the Yukon sale nor had he given anyone permission to take them.

Robert Gene Adams testified that at approximately 12:00 midnight on the 22nd of March 1970, he met the defendant in a restaurant at the Skelly service station restaurant on the H. E. Bailey Turnpike. The defendant asked him if he wanted to make some money and he replied that he did. At approximately 12:30 a. m. they left in the defendant’s pickup, drove to Tuttle, and then drove approximately one and one-half miles south of Tuttle on Highway 37. The defendant opened the gate and they drove onto the property to a barn where the cattle were penned. The defendant made two attempts to back the pickup to the cattle pen. The first attempt resulted in the defendant backing into a corral post. Together they roped six 150-to 250-pound calves, loaded them into the pickup and transported them to the defendant’s home. On the following Tuesday, March 24, 1970, Adams returned to the defendant’s house. He observed the defendant remove the ear tags from the calves, helped him load the calves into the pickup, and accompanied the defendant while he transported them to' the Yukon sale. At the sale, Adams stated that three of the calves were sold for Seventy-five Dollars ($75.00) each and three were sold for Ninety Dollars ($90.00) each. Further, Adams testified that he observed the defendant receive State’s Exhibit Ten, the check in payment for the calves. Adams stated he received One Hundred Forty-seven Dollars ($147.00) for his part of the transaction after State’s Exhibit Ten was cashed at the shopping center at S.W. 74th and Pennsylvania, Oklahoma City, Oklahoma.

Dannie Hill testified that he was the lessor of the property on which the defendant lived. On the morning of March 22, 1970, at approximately 5 :30 to 6 :00 a. m., he observed five 250- to 300-pound calves in a pen on the property the defendant leased from him.

Carl Heckes and Arthur Mueggenburg each testified that they purchased three calves at the Yukon Livestock Sale on March 24, 1970. Each testified that he was present when Campbell came to his property and identified the calves as the calves that had been stolen from him on the 22nd.

Glen Cornwell testified that he conducted a livestock auction sale at Yukon, Oklahoma. He identified, as a business record, State’s Exhibit No. 13, a bill of sale for three bull and three heifer calves. This sales slip showed the defendant as the seller of three Black Angus bulls and three Black Angus heifers. It reflected the total sale price of Five Hundred Nineteen Dollars ($519.00) with Carl Heckes and Arthur Mueggenburg as the respective purchasers. Further, he identified State’s Exhibit Ten as the check issued to Box by the livestock auction.

Buford Brown, undersheriff for Grady County, stated he investigated the loss of the Campbell calves. He testified he removed a paint sample from a creosote post, State’s Exhibit No. 11, near a loading area where the calves were found missing. Further, he stated he removed paint samples from the defendant’s pickup bumper, State’s Exhibit No. 12. He stated he la[971]*971beled and packaged the samples and Deputy Ron Taylor transported them to the Crime Bureau.

John McAuliff testified that he made paint comparisons of State’s Exhibits 11 and 12 and found the paint from the posts matched identically those samples removed from the defendant’s bumper.

Thereafter, the State rested.

The defendant testified that he was staying with his mother in Oklahoma City on Sunday, March 22, 1970. He arrived at his mother’s house at approximately 7:00 p.m. on that evening. His testimony generally revealed that on the evening of the 22nd, from 7:00 p.m. to 11:00 p.m. he was either at his mother’s home, helping a friend move a truck from a ditch, or visiting with his cousin. He stated that he arrived back at his mother’s home at 11:30 p.m. and stayed there until Tuesday morning, March 24. On Tuesday, he drove to his house in Tuttle, Oklahoma, where he met Adams. After he arrived at the house, he observed Adams feed calves which Adams had penned on his property. Adams asked the defendant if he would purchase these calves from him. The defendant replied that he could not, however, he would help him transport them to a sale if Adams would help him move his furniture. While they were transporting the calves to the Yukon sale, a man stopped them and asked Adams if he would sell two of the calves. Adams refused to sell them separately. The defendant talked with this person and found that the calves were worth approximately $400.00 to $450.-00. The defendant later told Adams he would guarantee him $400 for the calves if Adams would allow him to sell them with him taking the difference between the sale price and $400.00. Purportedly, Adams agreed to this arrangement. The defendant testified that after they made the sale he gave Adams $400 and he kept the balance as per their agreement.

Galen Moore testified that on the 24th of March, he observed the defendant driving his pickup which was transporting six calves. He stopped him to purchase two calves. In response to his questions, Adams stated that he would not split them. He wanted to sell them together.

Mrs. Doris Hall testified that the defendant arrived at her home on the 22nd of March 1970, stayed a short period of time, left, returned and was present in their home at 10:30 p.m. when she retired for the evening.

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Box v. State, 1973 OK CR 65, 506 P.2d 969, 1973 Okla. Crim. App. LEXIS 404 (Okla. Ct. App. 1973).

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