Cope v. State , 15 Okla. Crim. 437 ( 1918 )

Clifton Cope was convicted in the district court of Custer county, Okla., of the crime of grand larceny, in that he stole a saddle belonging to one Henry Pietz. The saddle was taken from Englewood, Kan., and carried into Custer county, Okla., where it was found in possession of one Homer Dodder, a farmer who lived near the city of Clinton, Okla. Mr. Dodder had, some time before the discovery of the saddle, purchased same from Mr. Cope, who lived in the town of Gage, Okla., about 12 miles from Englewood, Kan. Mr. Pietz, the owner of the saddle, lived at the town of Knowles, Okla., about 15 miles west of Gage, and about 22 miles southwest of Englewood, Kan.

The first alleged error relied upon for reversal of this judgment is that the court refused to grant a continuance on account of absent witnesses. It is admitted by counsel in the brief for plaintiff in error that the testimony of the absent witnesses was cumulative, and this fact clearly appears from the record, because other witnesses were used by the defendant who testified to the same state of facts that the affidavit for continuance shows was expected to be proved by the absent witnesses. That the court under such circumstances did not commit error in refusing a continuance is held in the following cases:Bethel v. State, 8 Okla. Crim. 61, 126 P. 698; Rose v. State,8 Okla. Crim. 294, 127 P. 873; Litchfield v. State,8 Okla. Crim. 164, 126 P. 707, 45 L.R.A. (N.S.) 153.

It is next contended that the court erred in refusing to peremptorily instruct to acquit the defendant. This assignment of error may be properly considered in connection with the assignment that the evidence is insufficient to sustain a conviction, and the judgment should therefore be set aside. We have carefully examined the evidence in this case. It is unnecessary to enter into a discussion of the same, because, under repeated holdings of this court, it is only necessary to determine, where questions of this kind are raised, whether or not there is any evidence in the record from which the jury could rationally conclude that larceny was committed as alleged, and that the defendant is guilty thereof. There are numerous circumstances and facts testified to by the witnesses, both in chief and on rebuttal, that indicate clearly the guilt of this defendant of the crime charged, and under such circumstances this court will not set aside a judgment, especially after its approval by the trial court, where the same question was raised upon motion for new trial. See Ostendorf v. State, 8 Okla. Crim. 362, 128 P. 143;Caple v. State, 3 Okla. Crim. 621, 105 P. 618; Bishop v. State,9 Okla. Crim. 175, 130 P. 1173.

The argument of the county attorney is also complained of, but the record shows that, when this argument was objected to, the court promptly sustained the objection of defendant's counsel. There was no further request by said counsel to withdraw the remarks from the jury. The remarks were not such as are made grounds for reversal by statute, and while we believe them to have been improper, in view of the fact that the punishment for the offense committed was fixed at five months' imprisonment, we cannot believe that the defendant was seriously harmed thereby. Apparently they had very little weight with the jury, and in no way prejudiced the defendant.

It is also contended that the court erred in not sentencing the defendant to the state penitentiary in accordance with the verdict of the jury. Such verdict provided five months' imprisonment in the penitentiary. The court sentenced defendant to five months' imprisonment in the state reformatory, located at Granite. Section 7 of chapter 217, Session Laws of Oklahoma 1913, apparently authorizes the trial judge, in passing sentence in felony cases, to either sentence convicted persons to imprisonment at the state penitentiary or to imprisonment at the Oklahoma state reformatory, except where the defendant is convicted of certain crimes (not including grand larceny) as therein noted in said section. It was certainly not prejudicial to the defendant that he be imprisoned in the state reformatory, instead of the state penitentiary. This assignment of error is frivolous.

Other alleged errors are complained of. Matters are asserted to be prejudicial to this defendant by his counsel, without the citation of a single authority to support same. The entire brief does not contain the citation of a single case to support a single contention advanced in behalf of this defendant. He was energetically defended in the trial court by the same counsel who represents him here, and we are inclined to the belief that, if authorities had existed to support numerous contentions relied upon by counsel, the same would have been incorporated in his brief. This court has repeatedly warned counsel representing plaintiffs in error, upon whom exists the burden of convincing this court that the trial court has by its actions and rulings prejudiced the substantial rights of a convicted person, that it is necessary, not only to assert error, but to support the contentions made by both argument and authorities. Where this is not done, and it is apparent that the defendant has been deprived of no fundamental rights, this court will not search the books for authorities to support the mere assertion that counsel makes of error. The crowded condition of our docket renders it practically impossible to do so. We are constrained to state, however, the defendant in this case is to be congratulated that the punishment inflicted is so wholly disproportionate to the offense committed. Few states provide a minimum punishment for grand larceny at imprisonment for less than one year.

The judgment of the trial court is affirmed.

DOYLE, P.J., and ARMSTRONG, J., concur.