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573 P.2d 713

Smith v. State

Court of Criminal Appeals of Oklahoma

Decided November 8, 1977

Court of Criminal Appeals of Oklahoma · decided 1977-11-08

Cited by 3 later decisions — most recently January 1991

3 state decisions

Key passage — most relied on by later courts

“(1) Every person who buys or receives in any manner, upon any consideration, any personal property of any value whatsoever that has been stolen, embezzled, obtained by false pretense or robbery, knowing or having reasonable cause to believe the same to have been stolen, embezzled, obtained by false pretense, or robbery, or who conceals, withholds, or aids in concealing or withholding such property from the owner. (Emphasis added).”

quoted by 1 later decision, including Bussett v. State

“There was sufficient testimony presented at the trial to justify the jury in finding that the defendant was withholding the watch from its owner, even though it was not being kept in a secret place. 573 P.2d at 716 .”

quoted by 1 later decision, including Bussett v. State

Relies on Roulston v. State · Cooks v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1977-11-08

View the full empirical analysis of this case →

¶1OPINION ON REHEARING

BUSSEY, Presiding Judge:

¶2On Rehearing the defendant argues that the search of his premises and his arrest— both done without a warrant — were unlawful as based on a subterfuge. He maintains that the officers anticipated that they would find stolen property at the defendant’s place of business, and that they did not actually go there for the purpose of meeting the defendant’s brother-in-law.

¶3*716With regard to a plain-view discovery, the question of subterfuge goes to the. issue of whether or not the officer had a right to be where he or she was when the discovery was made. In the instant case all events transpired at the defendant’s place of business — a place open to the public. Clearly the officers had a right to be where they were when the watch was discovered.

¶4The defendant also contends that there was a fatal variance between the evidence presented at the trial and allegations made in the information, and that hence his “demurrer to the evidence” and “motion to dismiss” — both more properly termed a motion for directed verdict— should have been sustained. The test of a fatal variance in an information is whether or not the person accused was misled by the information or could be exposed to the danger of being placed in jeopardy a second time for the same offense. In the instant case we do not believe that either of these alternatives existed. The evidence was all of a similar character and was all seized in the same search. Compare Cooks v. State, Okl.Cr., 560 P.2d 1019 (1977). In addition such evidence is admissible to show absence of mistake or accident. See Roulston v. State, Okl.Cr., 307 P.2d 861 (1957).

¶5Finally the defendant argues that since the wrist watch was found in a public place it could not be proof of the concealment of stolen property. Title 21 O.S.1971, § 1713 provides that every person is guilty of a felony “. . . who conceals, withholds, or aids in concealing or withholding such property from the owner, . .” (Emphasis added). There was sufficient testimony presented at the trial to justify the jury in finding that the defendant was withholding the watch from its owner, even though it was not being kept in a secret place.

¶6The judgment and sentence appealed from is AFFIRMED, and the Clerk of this Court is directed to issue the Mandate Forthwith.

¶7CORNISH and BRETT, JJ., concur.

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