Carr v. State, A-11148

• Decision Date: 22 March 1950
• Docket Number: No. A-11148,A-11148
• Citation: 91 Okla.Crim. 94,216 P.2d 333
• Parties: CARR et al. v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 333

216 P.2d 333

91 Okla.Crim. 94

CARR et al. v. STATE.

No. A-11148.

Criminal Court of Appeals of Oklahoma.

March 22, 1950.

Syllabus by the Court.

1. Examination of juror on voir dire is for purpose of ascertaining when a cause of challenge exists and of ascertaining whether it is wise or expedient to challenge peremptorily. Questions asked on voir dire examined and held not to violate this principle.

2. The order in which testimony shall be produced rests largely in the discretion of the trial court.

3. Under Tit. 21 O.S.A. § 51, it is proper to charge in the information one or more offenses of prior conviction, and offer proof to sustain the same.

4. The above statute does not define a new and independent crime, but provides that when one is found guilty of a specific crime, he may be more severely punished because of his previous conviction as alleged and found.

5. Where there is a statute permitting the jury to assess the punishment, as we have in this State, it is proper to allege and prove prior convictions of a felony for the purpose of permitting the jury to assess additional punishment, as provided by the statute, if they find the defendant guilty of the specific crime charged, and in addition thereto find that the defendant has been previously convicted, as alleged.

6. Tit. 22 O.S.A. § 411, provides: 'Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in an indictment or information.' This court will take judicial notice of the jurisdiction of courts of this State.

7. A prior conviction in a United States court of a crime which, if committed within this State, would be punishable by imprisonment, is a sufficient basis for a prosecution of a subsequent charge, as a second offense, under Tit. 21 O.S.A. § 54, which imposes heavier penalties for persons who have prior thereto been convicted of such a crime in any other state, government, or country.

8. A variance between the allegations of the information and the evidence is not material unless it is such as might mislead the defendant, or expose him to the injury of being put twice in jeopardy for the same offense.

9. Where the court in its general instructions correctly advises the jury as to the law applicable to the facts in the case, it is not error for the court to refuse to give special instructions requested by the defendant covered by the court's general instructions.

Judd L. Black, Oklahoma City, for plaintiffs in error.

Mac Q. Williamson, Attorney General, Lewis A. Wallace, Ass't Att'y General, for defendant in error.

POWELL, Judge.

The appellants, Glenn Adrian Carr and Archie McGlasson, were convicted by a jury in the District Court of Canadian County, where the case had been taken on a change of venue at instance of said persons, of the crime of burglary in the second degree, after former conviction of a felony, with punishment fixed by the jury at a term of twenty-five years each in the State Penitentiary.

The information charged that the offense was committed in Oklahoma County on the 17th day of December, 1947, by burglarizing the Ozark Drug Store, located at 2408 North Robinson, in Oklahoma City. The defendants were charged with acting conjointly and together. The information further alleged nine previous convictions of felonies by McGlasson and seven by Carr. At the trial neither of the defendants testified or offered evidence. They rested their case on a demurrer to the State's evidence.

The proof by the State showed that the burglary in question was committed about 1:30 A.M. on December 17, 1947, and that the defendants were arrested by Oklahoma City police officers while defendants were in the act of committing the burglary.

Harold Lee testified that he was a special officer, merchant police, in Oklahoma City, and on duty at the time of the burglary in question; that he was walking down an alley separating the Ozark Drug Store from the Macklenburg Supply Company building, and heard a pounding noise. That there were four windows in the drug store, built about nine feet up from the ground; that a pane of glass was gone from one of the windows, and he heard somebody pounding inside. He then went to a nearby building and asked the night watchman there to call for help over a portable radio he had. Police officers responded in a minute or so and the entrances to the Ozark Drug Store were covered by the officers.

The evidence developed that a number of police officers responded to the call and that the owner of the drug store, Mr. Swain, was called and that while the officers were waiting, those at the front saw a man moving around inside the drug store. Officers Jordan, Merz and Williams were at the back door, with Merz on the roof. Some ten or fifteen minutes after the officers arrived the defendant Glenn Adrian Carr came out, followed by the defendant McGlasson, with their hands up. A saw with extra blade was found in one of Carr's pockets. The defendants were handcuffed and taken back in the drug store, and there the officers found three punches, two screw drivers, chisels, and a sledge hammer and crowbar scattered over the floor around the safe. The upper left-hand corner of the safe had been punched and the knobs knocked away.

S. E. Swain testified that he was the owner of the premises in question and which he described as the Ozark Pharmacy, and located at 2408 North Robinson; that about twenty minutes before two o'clock the morning of December 17, he was called by the officers. He went to his place of business and found the officers there and that his place of business had been broken into; that he unlocked his front door and found fifteen or twenty officers and the two defendants, who were handcuffed, in the back of the store. He found also a hole had been cut in his ceiling and roof, and testified there was a steep drop where one coming through the hole could let themselves down. He had a safe there behind the prescription case and the nickel pieces were knocked off, including the combination and handles, and the top of the door was bent down, so that he thereafter had to purchase a new safe. He stated that he had around $300.00 in money and quite a lot of narcotics in the safe; that various tools, not belonging to him, were scattered over the floor around the safe. He testified that someone unknown to him had placed a ladder atop a coke-box at the rear of his store, and that access to the roof could be gained by use of the ladder.

Counsel for defendants in error in petition in error sets out twenty specifications of alleged error, which are argued in the brief under three propositions, which we shall consider in order. Counsel states: 'It is obvious from the outset that the defendants were guilty of an offense, however, we say that this record reflects that the defendants were deprived of a fair and impartial trial.'

Complaint is made of questions propounded to prospective jurors by the prosecution on voir dire, particularly the following: 'If the State of Oklahoma proves to your mind beyond a reasonable doubt the guilt of these defendants, you will vote to convict them, and if you are convinced beyond a reasonable doubt after you have heard all of the evidence in the case that these defendants are guilty, as charged, would you vote to convict them?'

And further: 'Now, his honor will state, in his instructions, the law in this case as to the punishment which carries a minimum of ten years and a maximum of life, and after you have heard all of the facts in the case and the circumstances and the evidence, if you thought the facts justified it, would you inflict the maximum penalty in this case?'

This case was filed under the provisions of Tit. 21 O.S.A. § 51, commonly called 'The Habitual Criminal Statute,' and we find nothing unfair in the voir dire examination complained of, in that the purpose of the allegations of a prior offense or offenses, goes to the punishment, and the county attorney had a right to find out from the prospective juror, if he would be willing to inflict added punishment to the crime charged, as provided by the statute, should the evidence justify. We do not find where the principle of law stated in Kizer v. State, 67 Okl.Cr. 16, 93 P.2d 58, cited by defendants, was violated. The second paragraph of the syllabus reads: 'Examination of juror on voir dire is for purpose of ascertaining when a cause of challenge exists and of ascertaining whether it is wise or expedient to challenge peremptorily.'

It is next objected that 'And thereafter the State proved sixteen former convictions against the defendants before introducing any evidence whatsoever to connect the defendants with the alleged crime of burglary, as set forth in the information.

Mr. S. E. Swain, the owner of the Ozark Drug Store, shown to have been burglarized, first testified, and though standing alone such evidence fell short of making out a prima facie case against the defendants, we cannot see where the defendants were prejudiced by the court permitting the State to thereafter prove the prior offenses alleged, before the evidence of the officers who caught the defendants in the act of burglarizing the drug store, was offered. This appears to be a highly technical objection, and without merit. This Court held in Mathies v. State, 56 Okl.Cr. 308, 38 P.2d 588: 'The order in which testimony shall be produced rests largely in the discretion of the trial court.' We do not find that the court abused its discretion.

The next main proposition advanced by defendants is: 'Where the accused is on trial as a subsequent and second offender and he timely admits and acknowledges to the court an alleged prior conviction of a felony and properly acknowledges and fixes his status as a subsequent and second offender, and when the State has proved a prior conviction of the accused, as alleged in the information, then there is no further issue on the question of 'former conviction',...