Stephens v. State

1915 OK CR 205, 152 P. 138, 12 Okla. Crim. 90, 1915 Okla. Crim. App. LEXIS 203

• Court: Court of Criminal Appeals of Oklahoma
• Decided: October 23, 1915
• Docket: No. A-2200.
• Status: Published

Opinion

DOYLE, P. J.

The plaintiff in error, Melvin Stephens, was 'tried in the District Court of Muskogee county on an information charging him with the theft of a cow. The jury found him guilty, but failed to agree upon the .punishment. The court rendered judgment and sentenced him to be imprisoned in the penitentiary for the term of five years. To reverse the judgment he appeals.

The first assignment of error relied upon to-wit: “That the court erred in overruling the motion to quash and set aside the information, because the defendant had not been given a preliminary examination,” is wholly without merit. In that it appears that the only variance between the preliminary complaint upon which the defendant was held to answer and the information filed in the District Court is that the preliminary complaint included an allegation as to the value of the animal stolen. This allegation was mere surplusage. Crowell v. State, 6 Okla. Cr. 148, 117 Pac. 883. The preliminary complaint was sufficient to charge the crime of larceny of a domestic animal, and the record shows affirmatively that the defendant had a preliminary examination. See Panosky v. State, 8 Okla. Cr. 116, 126 Pac. 451.

The next assignment is that the court erred in overruling the defendant’s motion for a continuance. The granting or refusal of a continuance rests in the sound discretion of the trial court, and a ruling of that court will not be reviewed, unless an abuse of discretion is shown.

We think the motion for continuance was properly overruled.

Another assignment of error is based upon an exception taken to the instruction on the defense of alibi. This assignment is hypercritical.

The trial court instructed the jury in part as follows:

“Bearing in mind this instruction, you are instructed that if upon considering the evidence of alibi in this case you entertain a reasonable doubt as to whether or not the defendant was present at the time and place of the commission of the offense charged in the information herein, you should acquit him.”

And also instructed the jury that if upon a consideration of all the evidence in the case the jury entertained a reasonable doubt of the defendant’s guilt, it was their duty to acquit him. The defense interposed by the defendant and the law applicable thereto was fully and fairly submitted to the jury in a charge that was not subject to legal objection.

Finally, it is insisted that the evidence is insufficient to sustain the judgment. There cannot be any serious ground for this claim. We have seldom seen a stronger case of circumstantial evidence and the rule is well settled, that this court will not disturb the verdict on account of the evidence, when there is evidence to support it. The judgment is therefore affirmed.

FURMAN and ARMSTRONG, JJ., concur.