Hathcoat v. State

1940 OK CR 143, 107 P.2d 825, 71 Okla. Crim. 5, 1940 Okla. Crim. App. LEXIS 140

• Court: Court of Criminal Appeals of Oklahoma
• Decided: November 27, 1940
• Docket: No. A-9753.
• Status: Published

Opinions

JONES, J.

Defendant Efton Hathcoat, J. B. Jackson, and Clyde Rush, Jr., were jointly charged in the dis trict court of Mayes county with the crime of larceny of domestic fowls. The defendant Efton Hathcoat asked for a severance and was tried, convicted, and his punishment assessed at one year in the penitentiary; and he has appealed.

The assignments of error are all directed to the proposition that the evidence introduced by the state is not sufficient to corroborate the testimony of the accomplice, Clyde Rush, Jr., who testified against the defeñdant.

In considering this question, a brief review of the evidence is necessary. We shall first consider the testimony as given by the accomplice. Clyde Rush, Jr., testified that he was 19 years of age and had lived in Pryor all of his life; that he, J. B. Jackson, and the defendant Efton Hath-coat were good friends and had run around together since they were kids. That on Saturday, May 7, 1938, he and J. B. and Efton were at the bookstore in the post office at Pryor; that in the conversation at that time, one of the codefendants asked the witness if he wanted to make some money. They did not tell him right at the time how the money was to be made, but he was to furnish the car. He tried to borrow his father’s car, and he wouldn’t let him have it. He then got his aunt’s car and met the other two boys across the street from the First National Bank. After they started out of Pryor going west, one of the boys said that they were going to get chickens. The car was a 1936 Model Ford VS, blue in color. They turned north about three miles out of Pryor and drove three and three-quarters miles north. It had been raining that day, and the roads were slick and muddy. After they had passed Cohan’s place about half a mile, the road was so slick that the car slid into a ditch. While they were stuck, Mr. Qualls and his family came along in the Qualls’ pick-up. Mr. Qualls and his son got out and helped them for about 30 minutes; and finally they got out of the ditch. They drove up to the section line corner and turned around and started back south. Mr. Qualls’ car was at the Cohan place, and they passed him. When they passed him, he started following them until they got tO' the paved road, where they turned west; and he turned east. They went about a mile west to a well the other side of the Osage schoolhouse, where they stopped and filled the car with water. One of the boys spoke up and said, “Let’s go back to Qualls’ and get the chickens.” They then turned the car around and drove back down the highway east to the section line leading north to Mr. Qualls’. They drove to Qualls’ place, went up to’ the drive on the north side of the road, and turned around; came back and parked in front of the house; then they got out. Efton went to' the barn to see if there was anybody at the barn. Rush got out and put mud on the license plate, and then went to the house and knocked to see if anybody was at home. He went to the well, washed his hands, and then went back to' the car. He waited at the car while J. B. and Efton took three sacks and went after the chickens. They came back with chickens in the sacks. J. B. said that he could drive the car better than the witness, who then got in the back. J. B. and Efton got in the front seat. They went to Claremore. When they got to Seminole street, Efton suggested that since they all three looked dressed up, the produce man would get suspicious, and that it would be better for one of them to get out and let the other two go on to the produce house and sell the chickens. They agreed, and Efton got out. J. B. and the witness went in and sold the chickens. When the witness started out the door, there was Mr. Wilson, the undersheriff. He asked him what he had in the car, and then took him and put him in jail.

About two weeks after the chickens were stolen, the witness went to Tulsa with the defendant, during which trip the defendant said, “Puddle, I am supposed to inherit some money; and if you will take the rap, I will give you §3,000 when you get out.” Another time he threatened to whip the witness if he told on him. The witness stated that he was testifying to the truth; and that he never did steal any chickens before and was never arrested and had. never been in trouble before in his life. He was not promised immunity by the county attorney, who said it was up to the judge and jury to- give him a sentence; but the county attorney did say he would recommend a lighter sentence if he told the truth.

P. F. Qualls, his wife, and his son, Forest Qualls, all testified. Their testimony, in substance, was that they left home on May 7, 1938, about 2 o’clock; that about one-half mile from their house they found the three defendants stuck in the ditch; and that they got out and helped them get their car out. While they were helping the boys, Mr. Qualls asked them where they had been. One of the boys spoke up and said they had been to Cohan’s Lake fishing. During the conversation they were asked if they had had any luck; and another one of the boys said that they had caught some fish, but they did not have much luck. That they were suspicious of the boys’ actions, and thought they were chicken thieves because they had had some chickens stolen the Saturday before, so they stopped at the Cohan place to see if the boys had actually been fishing there. That they learned that the boys had not stopped at Cohan’s Lake. That while they were at Cohan’s, the blue car in which the boys were traveling passed them, going back south; and they started following it and followed it to the pavement. That the boys turned west towards Clare-more; and they turned east and went on to Pryor. That they went to the produce house at Pryor, called the sheriff’s office, and told them about the boys. That Mr. Wilson, the undersheriff, called Olareinore and told them to look out for this car. That Qualls and Mr. Wilson got in the car and went to Claremore. They caught the defendant Clyde Eush, Jr., at the produce house; that the chickens he had just sold belonged to1 the Qualls, and had been stolen from them.

Willard Eose testified that he was drilling Sudan grass in the field north of the Qualls house at the time the chickens were stolen. He was about a quarter of a mile north of the house; and there was nothing between him and the house to obstruct his view. He related that he saw a car with three men in it drive up to the Qualls’ yard gate. It came from the west; it started off after staying there a little while. It then came back and stopped at the gate. One boy went to the house; and he saw another boy coming from the barn. He just saw three persons. He started towards the house and was about 220 yards away when they left: One of the boys stayed in the car while the other two came back, each with a sack in his hands. He was not close enough to identify either of the three boys.

Earl Lee testified that he lived about a mile from the Qualls farm. That he had heard the testimony of the other witnesses. That he saw the blue Ford, described by the witnesses, in which the three boys were traveling, four times that Saturday afternoon. This witness did not know any of the three boys riding, in the automobile, but he saw the car pass his house going north, which fact according to the other testimony would have been just before it was stuck in the mud; he saw it a second time after it had been pushed from the ditch in which it was stuck and had turned around and started south; he saw it a little while later pass his house and turn west towards the Qualls farm. The last time he saw the car, it was coming from the west, which is from the direction of the Qualls farm, and turn south at the corner and pass his house. The first three times the automobile passed his house, the three hoys riding in it were all in the front seat; the last time it passed his house, two were in the front seat and one in the back seat.

For the defendant, the defense was in the nature of an alibi. The defendant took the witness stand and admitted to meeting with the two boys at the post office as related by Rush. He admitted leaving town with the other two boys in the blue Ford automobile, turning off of the paved highway, and driving three and three-fourths miles north on the muddy road, where they got stuck. He admitted that one of the boys told Qualls at the time they were helped from the ditch that they had been at Cohan’s Lake fishing, which he knew at the time the statement was made was untrue. He admitted being in the automobile when it was turned around after being, pushed from the ditch, and driving back to the main highway and to' the well near the Osage schoolhouse. From that point on, there is, however, a decided conflict in the testimony of the defendant and the accomplice, Clyde Rush, Jr.

The defendant testified that Clyde Rush, Jr., proposed at the well that they go back to the Qualls house and get the chickens; and that he stated that he had been in enough trouble and that he was not going; and that he got out of the automobile and started walking home. That he lived about a mile south of the highway at that point. That he met a boy by the name of Ralph Panter and went back to Pryor with him in his car; that Ralph Panter was there in Pryor the day of the trial and had been subpoenaed as a witness in his behalf. (Panter did not testify.) That be did not help steal the Qualls’ chickens, and was not in the Rush car any more from the time that he got out at the well. That he went to Wagoner Saturday night and stayed Sunday and Sunday night and came back on Monday night. That he went to Maizie on Tuesday to stay until his dad could find out for sure that he had been charged with stealing chickens. That he returned from Maizie on Wednesday night and came with his dad to the sheriff’s office on Thursday morning. That he had pleaded guilty to a charge of burglary about two- years before, but had been giren a suspended sentence.

The defendant introduced the evidence of four of his neighbors and his father. One of them, John R. Keel, testified that he was 70 years old. That about 3 o’clock on the afternoon the chickens were stolen, he was going to Pryor on the Claremore-Pryor road with a young lady by the name of ¡Spoon; that he saw the defendant about 200 yards west of the schoolhouse. The defendant was walking east on the south side of the road. He saw the blue automobile and remembered that it had mud splashed on it; and there were only two boys in it. The other witnesses testified that they saw the defendant in Pryor after the drawing. One of them testified that he saw the defendant at the drawing, around 2 o’clock.

The witnesses offered by the defendant had him in Pryor at various times from 2 until 5 o’clock.

The defendant’s own admissions, however, contradict part of this testimony, as he could not have been at the places where he admits being, and also in the town of Pryor at the same time. If the defendant had not been in such close proximity to the Qualls family at the time the car was stuck in the mud hole so* that they could positively identify him, he could have denied all of the state- merits made by the accomplice, Rush, and would have had alibi testimony to have kept him in Pryor during all of the time of the occurrences as related by the accomplice.

In rebuttal, the state introduced the testimony of the undersheriff, who testified that he was called early Saturday afternoon by Mr. Qualls, who told him about seeing the three boys on the muddy road west of Pryor and suspecting them of being chicken thieves; that at Qualls’ suggestion he called the officers at Claremore to be on the. lookout for this automobile. That he and Qualls then got in his automobile and immediately started to Claremore. That he did not know the exact time that they arrived at Claremore, but thought it must have been about 2:30 or 3 o’clock. That they caught the defendant Clyde Rush, Jr., right after he had sold some chickens at the produce house and arrested him at that time. That between the time of the theft of the chickens and the next Thursday morning when the defendant came to the sheriff’s office and surrendered, he went to see the defendant’s old man at his home; that the defendant was not there, but the old man told him he would bring defendant in the next morning.

In the early case of Moody v. State, 13 Okla. Cr. 327, 164 P. 676, this court laid down the rule with respect to the corroboration of accomplice testimony. In that case it was held:

“Evidence corroborative of an accomplice need not directly connect the defendant with the commission of the crime; it is sufficient if it tends to connect him with its commission.

“Evidence corroborating an accomplice and tending to connect the defendant with the commission of the crime need not be direct, but may be circumstantial only.

“It is not essential that the corroborating evidence shall cover every material point testified to by the ac complice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to' some material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all. Such corroborating evidence, however, must show more than the mere commission of the offense or the circumstances thereof.”

There have been many decisions by this court since the decision in the Moody Case, supra. In some of them the wording of the decision has been slightly different from the wording of the law set forth in the Moody Case, but the substance of these decisions is the same; and this court has consistently adhered to the law as set forth in the Moody Case.

With this test in mind, let us see what facts are. proven which are corroborative of the testimony of the accomplice:

First. An admission by the defendant that he was a friend and associate of the accomplice.

Second. An admission by the defendant that he met his two codefendants at the post office and went riding with them. The fact that the defendant, a country boy, admits leaving the town of Pryor on a Saturday just at the time of the general drawing, where all of the farmers in the vicinity of Pryor attended, and driving off on a muddy road for three and three-fourths miles just for the ride, is a very suspicious circumstance and strongly corroborative of the accomplice testimony. This court feels that there is something stronger than’ just the urge to go for the ride that impelled these boys to take this drive.

Third. The testimony of Earl Lee, wlm saw the car in which the thieves were traveling four times. There were three boys in the car each time he saw it. The last time be saw tbe car, which was after the theft, two- hoys were in the front and one in the back seat.

Fourth. The testimony of Willard Rose, which proves that the theft was committed by three persons.

Fifth. The action of the defendant in fleeing from one relative to another during the several days after the crime was committed.

Sixth. The short space of time from the time Qualls last saw the boys in the blue car until Qualls and the undersheriff arrested the accomplice at Claremore. According to Qualls’ testimony, he called the undersheriff immediately upon his arrival at Pryor, and shortly thereafter they started for Claremore to search for the suspicious looking automobile. Since it is definitely established by the proof of Willard Rose that three men committed the theft, it is very unlikely that the defendants Rush and Jackson would have picked up a third party in so short a time to have taken with them to the Qualls farm after the chickens, which would have had to be the fact if the story related by the defendant Hathcoat was true.

Seventh. The defendant Hathcoat lived a mile south of the Osage schoolhouse, which would have made him the only one of the three boys who was thoroughly familiar with the vicinity where the boys were traveling that afternoon in the automobile. The accomplice lived in Pryor.

While none of these facts and circumstances standing alone would be deemed sufficient corroboration of the accomplice’s testimony, still, when they are all considered together, they are sufficient under the law pronounced by this court many times.

The law prescribes no standard for the strength of the corroborating evidence, and there is a failure to cor- robórate only if there be no evidence legitimately having that effect. Underwood v. State, 36 Okla. Cr. 21, 251 P. 507.

In Haas v. State, 37 Okla. Cr. 335, 257 P. 1115, this court said:

“Where there is evidence in corroboration of an accomplice, tending to connect a defendant with the commission of the crime charged, the sufficiency of such corroborating evidence is for the jury.”

In Key v. State, 38 Okla. Cr. 169, 259 P. 659, this court held:

“Where the sufficiency of the evidence to corroborate an accomplice is challenged, this court will take the strongest view of the corroborating testimony that such testimony will warrant, and, if it can say that there is corroborating evidence tending to< connect the defendant with the commission of the offense, it will uphold the verdict.”

The above cases are not cited because of the similarity of the facts in those cases to' the case at bar, but solely for the rules of law adopted in each said case which are applicable to the instant case. This court has sustained many larceny cases where the evidence was no stronger than that shown herein. It is true that in a few cases we have granted reversals, but all of them can be distinguished from the facts in the case at bar.

The attorney for the defendant emphasized the fact that the defendant was not present at the produce house at the time the chickens were sold. In considering the sufficiency of the evidence to sustain the conviction, this court under its decisions must give credence to the testimony of the two' state’s witnesses who* proved that three persons accomplished the theft. Whether it was the defendant or some person whom the accomplices Rush and. Jackson picked up after they had been with the defendant at the well, as has been suggested by counsel for the defendant, the third party was not present at the time the chickens were sold. Whoever he might have been, he did not choose to be seen at the produce house. The explanation as to why the defendant did not wish to be seen is very plausible in view of the fact that the defendant is the only one of the three parties charged who had a criminal record. The defendant at that time being at liberty under a suspended sentence for burglary and being older and wiser than the older boys, it was natural that he would prefer to remain in the background as much as possible.

The court instructed the jury upon the question of accomplice testimony and submitted the question to the jury for their determination as to whether or not the facts were sufficient to corroborate the testimony of the accomplice. The jury Avas acquainted with all of the parties in the case and was able to see their demeanor on the witness stand. The facts were properly a question for the jury to determine; and in a case of this character, we shall not interfere with the verdict of the jury.

The judgment is accordingly affirmed.

DOYLE, P. J., concurring.