Citation. Ellis v. State, 643 P.2d 330, 1982 OK CR 40, 1982)
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Brief Fact Summary.
The Appellant, Moses Alvin Ellis (the “Appellant”), was convicted of Larceny of Domestic Animals in the District Court of Kiowa County, Oklahoma, and sentenced to three years in prison. The Appellant argues that the evidence was insufficient to sustain the verdict and the trial court erred in not instructing the jury to acquit him.
Synopsis of Rule of Law.
A jury verdict, based on competent evidence, will not be disturbed on appeal.
Facts.
On November 12, 1979, Richard Owens (“Mr. Owens”) noticed one of his newborn calves was missing. Days later, his son observed a calf fitting the description of the missing calf in a shed with other calves on a neighbor’s property. The Sheriff’s office was notified, and the calves were confiscated pending investigation. The following day an official from the Sheriff’s office took the calf in question to the Mr. Owens’ pasture. The calf was rejected by several cows when it attempted to nurse. The mother cow ran across the pasture bawling, and immediately licked the calf and allowed it to nurse. Lifelong cattlemen testified at trial that these actions of a cow in relation to a calf constitute the accepted test for determining maternal lineage. The Appellant testified that he purchased the calf, and he had a sales slip to prove the purchase. Further, Leon Owens testified that he sold a calf similar in appearance to the Appellant on October 23, 1979.
Issue.
Was the evidence insufficient to sustain the guilty verdict?
Held.
Judge Bussey issued the opinion for the Oklahoma Court of Criminal Appeals in holding that the judgment and sentence are affirmed.
Concurrence.
Judge Brett and Judge Cornish concurred, but did not issue separate opinions.
Discussion.
While the evidence to convict in this case was circumstantial, and there appeared to be a conflict in the testimony, the jury is charged with weighing testimony in order to find the truth. The verdict will not be disturbed on appeal when, as in this case, there is competent evidence to sustain the verdict.
