Benson v. State, A--16092
| Decision Date | 31 March 1971 |
| Docket Number | No. A--16092,A--16092 |
| Citation | 483 P.2d 1160 |
| Parties | Billy Lee BENSON, Jr., Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Plaintiff in error, Billy Lee Benson, Jr., hereinafter referred to be defendant, was convicted by jury verdict in the District Court of Oklahoma County, Case No. CRF--70--703, with the crime of Petit Larceny After Former Conviction of a Felony, and sentenced to five years imprisonment. The judgment and sentence was imposed in accordance with the jury verdict on May 4, 1970, and this appeal perfected therefrom.
The evidence includes the testimony of Jimmy Ray Ervin who testified that he was the assistant manager of Midwest City T.G. & Y. Store on March 14, 1970, when he saw the defendant in the store about 7:30 P.M. Ervin noticed the defendant with some flash cubes and an armload of merchandise, but later observed defendant without the merchandise. Defendant engaged Ervin in a conversation and removed three polaroid film packages from his pocket and put them on the counter. While a checker was absent from the check stand, defendant left the store. Ervin pursued him and caught him in the parking lot and returned to the store where Ervin called the police.
Officer Pratt of the Oklahoma City Police Department testified that he arrested the defendant at the store pursuant to Ervin's call. Upon searching the defendant, the officer found the flash cubes, flash bulbs and polaroid film in the lining of his jacket.
Defendant did not testify or offer evidence in his behalf. His former felony conviction was stipulated.
On appeal, defendant urges consideration of the evidence in support of the conviction and the punishment imposed. Upon reviewing the evidence, there can be no question that it is sufficient to support the verdict. The essential elements of the crime for which defendant was convicted were proven and there is no controverting evidence.
As regards the sentence imposed, we find no basis for modification. The sentence of five years imprisonment was within the limits of 21 O.S.1961, § 1706, and 21 O.S.Supp.1970, § 51. As stated in Thigpen v. State, Okl.Cr., 449 P.2d 932 (1969):
'Court of Criminal Appeals will not modify a sentence alleged to be excessive unless it is convinced from an...
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Mason v. State
...that under all facts and circumstances the sentence is so excessive as to shock the conscience of the court.' Further, in Benson v. State, Okl.Cr., 483 P.2d 1160 (1971), we held that a sentence of five years' imprisonment for Petit Larceny, After Former Conviction of a Felony, was not exces......