Carr v. State

• Decision Date: 22 June 1966
• Docket Number: No. A--13758,A--13758
• Citation: 417 P.2d 833
• Parties: Bobby Joe CARR, 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

Page 833

417 P.2d 833

Bobby Joe CARR, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--13758.

Court of Criminal Appeals of Oklahoma.

June 22, 1966.

Rehearing Denied Sept. 13, 1966.

Jay D. Dalton and Gary W. Sibley, Tulsa, for plaintiff in error.

Charles R. Nesbitt, Atty. Gen. State of Oklahoma, Hugh G. Collum, Asst. Atty. Gen., for defendant in error.

MEMORANDUM OPINION

BUSSEY, Presiding Judge.

Bobby Joe Carr, hereinafter referred to as defendant, was charged, tried and convicted for the offense of Robbery with Firearms After Former Conviction of a Felony. Judgment and sentence was rendered in accordance with the verdict of the jury, assessing his punishment at and less than 30 nor more than 90 years imprisonment in the State Penitentiary at McAlester. A timely appeal has been perfected to this Court.

There are a number of assignments of error urged on appeal and for the purpose of clarity we will deal with those which have some merit, but not in the order in which they were presented to the Court in the briefs of the respective parties. The defendant contends that the trial court erred in overruling his Demurrer to the evidence which in effect, challenges the sufficiency of the same. Briefly stated, the facts adduced on behalf of the State established that on the afternoon of December 31, 1964, the Quik-Trip Store, situate at 45th St. and Charles Page Boulevard in the City of Tulsa, Oklahoma, was robbed. Betty Stoddard and Rodney Jones observed one of the robbers enter the store and positively identified the defendant as being the driver who remained outside in the get-away car. Miss Stoddard noted the license number of the automobile and the description of the car. This information was transmitted to the police who later arrested the defendant in the automobile bearing the same license number. On his person, they found currency and fifty-cent pieces and quarters. The coins corresponded closely in denomination and number to those taken in the robbery. The defendant did not take the stand in his own behalf, but offered testimony, the gist of which was that other persons and not he, were in the automobile before and after the time that the robbery occurred.

We are of the opinion that the trial court properly overruled defendant's Demurrer, for we have repeatedly held that:

'Where evidence is conflicting, sufficiency thereof presents question for determination of jury, and trial court should not direct verdict or sustain demurrer to evidence if there is proof tending reasonably to sustain allegations of information.'

See Henderson v. State, Okl.Cr., 385 P.2d 930.

The defendant next urges that the trial court erred in refusing to grant his Motion for Mistrial when the following proceedings occurred:

'(Out of hearing of the Jury)

MR. SIBLEY: At this time the defendant moves for a mistrial on the basis that in his opening argument the County Attorney placed the Information face upon the desk--on the bar within view of the jury, which shows the After Former Conviction which has been marked out, thus bringing their attention to it, and it is possible that one or more members of the jury had an opportunity to discover the defendant as being tried with the After Former Felony attached.

THE COURT: I was very carefully watching the jury and the Assistant County Attorney while he made his statement, at which time the Court observed absolutely no impropriety and I feel confident that if he had been displaying the Information to the jury, that the Court would have seen and observed the same and the Court thinks it just did not happen, and I, therefore, overrule the motion for mistrial.

MR. FALLIS: Your Honor, for the purpose of the record, with reference to the bar in question, the Information, or copy of the Information was not laid on the bar in front of the jury, but that after the completion of the reading of the same, it was placed on the court reporter's desk with the Information alleging After Former Conviction completely marked out.

THE COURT: Mark this as State's exhibit 1 for the purpose of this Motion only, and in no event shall it be displayed to the jury.

MR. SIBLEY: We take an exception.'

Defendant argues that it is possible that one or more of the jurors could have seen the Information and that portion which referred to defendant's former conviction and that assuming the same to be true, under the rule laid down in Harris v. State, Okl.Cr., 369 P.2d 187, this case must be reversed and remanded. Defendant argues that he did not call the jurors to determine whether or not they had seen that portion of the Information relating to the former conviction for the reason that to have done so would have firmly fixed in their minds that the defendant had a record. There is great merit to this contention; however, nothing would have prevented counsel for defendant to have called the jurors as witnesses in support of this assignment of error in the defendant's Motion for New Trial.

In view of the statement of the trial judge and absent some showing in the record that the jurors observed that portion of the Information relating to the former conviction, we must hold this assignment of error to be without merit.

The defendant next contends that the assistant County Attorney committed prejudicial error when, after extensive cross-examination of a defense witness and in apparent...