
    H. C. ROBERTS v. STATE.
    No. A-8007.
    Dec. 17, 1931.
    Rehearing: Denied Jan. 9, 1932.
    (12 Pac. [2d] 701.)
    E. E. Ammons, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of McIntosh county of the crime of grand larceny, and his punishment fixed by the court at imprisonment in the state penitentiary for a period of ten months.

Defendant was prosecuted under section 2102, C. O. S. 1921, which provides:

“One who finds lost property under circumstances which gave him knowledge or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person who is not entitled' thereto, without having first made such effort to find the owner and restore the property to him as the circumstances render reasonable and just, is guilty of larceny.”

The evidence of the state was that Other Six, a man more than 80 years of age, had been in the barber shop to get a shave; that he took out his pocketbook containing three flO bills, some change, and a deposit slip for |680 issued to him by the Hitchita bank, and paid the barber, and, as he started out on the street, he put the change in his pocketbook and thought he put the pocketbook in his pocket; that it dropped to the sidewalk; that defendant was walking immediately behind Other Six, and stooped down and picked the pocketbook up, and put it in his coat pocket; that in a few minutes Other Six discovered the loss of the pocketbook and came back looking for it; that Eddie Marshall and Jack Marshall were standing near the place where Other Six dropped the pocketbook, and saw the defendant pick it up and put it in his pocket; that a short time later Other Six told the officers about the loss of the pocketbook, and that about an hour afterward the Marshalls pointed out the defendant as the man who picked it up. Both Marshalls testified that Other Six dropped the pocketbook. Eddie Marshall testified that defendant was the man who picked it up, and Jack Marshall testified to seeing it picked up by a man answering the defendant’s description, but was not so positive in his identification. Defendant was arrested, and, when searched, $25 in bills and some change was found on his person.

Defendant, testifying for himself, admitted that he was in town that day, and that he passed the place where the pocketbook was dropped, about that time, but denied that he picked up any pocketbook on that day, and was corroborated by two men who claimed to have been with him all the time.

Defendant called as a witness John Clubb, who testified that he found, in Checotah, a pocketbook containing $30 in bills, on the day the Other Six pocketbook was lost; that he put this pocketbook in his pocket, and went to Henryetta, where he lived; that he heard about somebody being arrested, and came over to Checotah and from there to Eufaula, and with J. M. Roberts, brother of defendant, delivered the pocketbook to the sheriff, in the presence of the county attorney; that the witness made a sworn statement at that time of when and where and how he found the pocketbook and the persons to whom he showed it and told about it.

Defendant next called Ed Cantrell as a witness, who testified that he had helped make bond for defendant; that three or four days after the bond was made defendant picked him up on the road and took him to Che-cotah; that from Checotah they went to Henryetta; that they stopped on the way to Henryetta and picked up John Clubb’s wife; that they stayed all night at Clubb’s house; that defendant pulled a pocketbook out of his left pocket and witness saw three bills, and he said, “Take that and go”; that this was the same day that Clubb and Monroe Carson took the pocketbook down to the sheriff’s office; that immediately after this transaction he got off of defendant’s bond.

Other Six testified that the pocketbook returned to the sheriff and exhibited to him was not the one he had lost.

The defendant in his brief says:

“For a reversal of the judgment herein defendant earnestly contends that the testimony in this case is wholly insufficient to- warrant a verdict of guilty.”

The evidence of the state, coupled with that of the witness Cantrell as to the frameup and return of the pocketbook by defendant, was sufficient to warrant the jury in finding the defendant guilty. The cause is therefore affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.  