KIMBRO v. STATE

KIMBRO v. STATE
1968 OK CR 206
447 P.2d 444
Case Number: A-14777
Decided: 11/20/1968
Oklahoma Court of Criminal Appeals

An appeal from the District Court of Woodward County; F.B.H. Spellman, Judge.

Frank Thomas Kimbro was convicted of the crime of Attempted Burglary After Former Conviction of a Felony, and appeals. Affirmed.

H.A. Leatherman, Oklahoma City, for plaintiff in error.

G.T. Blankenship, Atty. Gen., for defendant in error.

BUSSEY, Judge.

¶1 In the late evening of the 18th day of November, 1966, Woodward City Police Officers were alerted by a burglar alarm system connected in the police station with Jacklyn's Jewelry Store, located at 904 Main Street, Woodward, Oklahoma. They proceeded to the jewelry store and upon arriving they heard noises on the roof. They climbed to the roof of the building where they observed three men, one of whom was identified as Frank Thomas Kimbro, hereinafter referred to as defendant. These three men were taken into custody, along with assorted burglary tools. There was a hole in the roof and the tar on some of the tools corresponded with the tar on the roof. The suspects were separately charged with the crime of Attempted Burglary.

¶2 During the trial the evidence, as above set forth, was offered on behalf of the State and the defendant was positively identified as one of the subjects on the roof. This evidence was presented to the jury, together with the testimony of Mr. Sidney Wheeler Northup who operated the jewelry store, and whose testimony was that he had not given permission to any of the defendants to go on the roof or attempt to enter his place of business.

¶3 The case was submitted to the jury under proper instructions and in a two-stage proceeding they rendered a verdict of guilty and after evidence was introduced as to the defendant's prior convictions, they retired to deliberate under proper instructions, and returned a verdict fixing the judgment and sentence at five years imprisonment in the State Penitentiary. A timely appeal has been perfected to this Court.

¶4 There were several assignments of error presented in the defendant's Motion for a New Trial and urged in his Petition in Error, none of which would justify a modification or reversal. To the contrary, from our examination of the record it appears that the evidence overwhelmingly supports the verdict of the jury that the defendant was capably represented by counsel throughout the trial. Some authorities have been cited in support of the Petition in Error, but in the light of the entire record, we are of the opinion that there were no errors committed during the trial of the case which would justify a modification or reversal. Under such circumstances we follow the rule that where the evidence overwhelmingly supports the verdict of the jury and the record is free of error which would justify modification or reversal, the judgment and sentence appealed from will be affirmed.

¶5 Affirmed.

NIX, P.J., and BRETT, J., concur.