Byrne v. State, A--15293
| Decision Date | 03 March 1971 |
| Docket Number | No. A--15293,A--15293 |
| Citation | 482 P.2d 620 |
| Parties | James Clinton BYRNE, 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, James Clinton Byrne, hereinafter referred to as defendant, was convicted by jury verdict for the crime of Burglary in the Second Degree, After Former Conviction of a Felony in the District Court of Tulsa County, Case No. 23,309. Judgment and sentence was imposed on November 8, 1968, sentencing the defendant to a term of 10 to 30 years imprisonment, and this appeal perfected therefrom.
Defendant first contends that the informationw as inadequate to inform the accused of the offense charged and sufficiently identify the offense so that upon conviction or acquittal defendant would be able to defend himself against any subsequent prosecution. It is a familiar rule of this Court that an information charging defendant with a crime is sufficient if it charges the offense substantially in the language of the statute. Richards v. State, 15 Okl.Cr. 582, 179 P. 777 (1919). Furthermore, informations similar in language to the one at bar have been held sufficient in Searce v. State, Okl.Cr., 326 P.2d 1065 (1968), and Bradford v. State, Okl.Cr., 331 P.2d 485 (1958). Defendant did not detail in what manner the information is insufficient and upon review we find no inadequacy.
Defendant's next assignment of error is a misconduct of the prosecuting attorney in the voir dire examination of the prospective jurors in that he informed the jury as to the status of the law which is the sole province of the court. Upon carefully reviewing the record in this regard we do not find any improper 'instruction' by the prosecuting attorney as to the law. In stating some of his questions during voir dire the prosecuting attorney did hit upon some 'probable' conditions of the law upon which the court might later instruct. However, it will be noted that the court's instructions to the jury advised that his instructions 'contain all the law' to be applied. It is a familiar rule that the burden is upon the defendant to show prejudice from alleged misconduct. Wilson v. State, Okl.Cr., 458 P.2d 315 (1969). It is error plus injury, and not error alone, which forms the basis for reversing a judgment. Phelps v. State, Okl.Cr., 404 P.2d 687 (1965). We are, therefore, of the opinion that there is no merit to defendant's contention as there is no showing of prejudice or injury resulting from the alleged misconduct of the prosecutor, and further that the jury was properly instructed in regard to the law.
Defendant further cites as error misconduct of the prosecutor in referring to the defendant during the trial by the name 'Rocky.' We are not persuaded that the use of this name was sufficiently improper and prejudicial to the rights of the defendant so as to constitute error. In Bland v. State, 42 Ala.App. 392, 166 So.2d 728, 729 (1964), it was held:
'The use by the solicitor of an alias or nickname in referring to the accused, if not excessive or in bad faith has been held not to amount to prejudicial error.' 166 So.2d at 734.
We do not find that the use of the nickname had the unavoidable effect as to prejudice the jury and inflame them. Commonwealth v. Giambrone, 183 Pa.Super. 283, 130 A.2d 254 (1957). Gant v. Raines, Okl.Cr., 377 P.2d 603 (1962). 23A C.J.S. Criminal Law § 1106.
Next defendant contends that the court erred in not sustaining the defendant's demurrer to the evidence in that the evidence was insufficient to support the conviction. It is quite true that evidence raising a mere suspicion is insufficient and without more, a demurrer to the evidence should be sustained. However a demurrer to the evidence in substance admits the facts the evidence tends to prove. Akers v. State, Okl.Cr., 323 P.2d 381 (1958). Where there is any competent evidence reasonably tending to sustain the allegations of the charge, the trial court should not sustain a demurrer to the evidence. Martin v. State, 92 Okl.Cr. 182, 222 P.2d 534 (1950). We are of the opinion that the trial court properly overruled the defendant'...
To continue reading
Request your trial
-
Jackson v. State
...during voir dire. We find that the prosecutor's remarks were not so egregious as to constitute reversible error. See Byrne v. State, 1971 OK CR 100, p 3, 482 P.2d 620, 621. Next Jackson claims that the prosecutor improperly defined reasonable doubt during voir dire. The prosecutor's remarks......
-
Lockett v. Dowling
...this exchange which affected [Petitioner's] substantial rights. See Jackson v. State, 1998 OK CR 39, ¶ 22, 964 P.2d 875, 885; Byrne v. State, 1971 OK CR 100, ¶ 482 P.2d 620, 621. The balance of challenged voir dire questions were an attempt by the prosecutor to determine potential biases by......
-
Campbell v. State, F-80-455
...tending to sustain the allegations of the charge, the trial court should not sustain a motion for directed verdict. Byrne v. State, 482 P.2d 620 (Okl.Cr.1971); Maynard v. State, 625 P.2d 111 (Okl.Cr.1981). This Court finds that the trial court correctly overruled the motion for directed ver......
-
Glover v. State, F--73--457
...683 (1973). Where there is any evidence upon which a verdict can be based, the same will not be disturbed on appeal. In Byrne v. State, Okl.Cr., 482 P.2d 620 (1971), the defendant had been charged with the crime of Second Degree Burglary, After Former Conviction of a Felony. On appeal defen......