Carter v. State, M--76--593
| Decision Date | 17 February 1977 |
| Docket Number | No. M--76--593,M--76--593 |
| Citation | 1977 OK CR 57,560 P.2d 994 |
| Parties | Steven CARTER, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appellant, Steven Carter, hereinafter referred to as the defendant, was charged withe the offense of Resisting an Officer, in violation of 21 O.S.1971, § 268, was tried and convicted in the District Court, Payne County, Oklahoma, Case No. CRM--75--599. The jury fixed punishment at imprisonment in the Payne County Jail for a period of one (1) year; pursuant to 21 O.S.1971, § 10. From said judgment and sentence, defendant has perfected this timely appeal.
The evidence introduced at trial on the part of the State was the testimony of the arresting officers. Two officers of the Stillwater Police Department testified that they received a radio call at 11:45 p.m. on June 25, 1975, dispatching them to 317 N. Duncan, the scene of a reported burglary in progress. At the scene the officers were directed by the victim to pursue two black males who had fled across an alley and whom she stated, lived in the pink house. The two black males, later identified to be the defendant and Lee Walker, were attempting to enter the pink house when uniformed Officers Logan and Leseman stepped up onto the porch and attempted to arrest the two suspects, one of whom was later identified as the defendant. Someone inside the house unlocked the front door, and the officers testified that the defendant struck Officer Logan and both suspects fled into the house. Officer Griffin testified that he consulted with an Assistant District Attorney who advised that entering the house to effect the arrest would be proper. The officer further testified that he attempted to persuade Mr. Tom Carter, the defendant's father, to send the suspects out which Mr. Carter declined to do. Two officers then entered the house and arrested the defendant. The defendant tried to struggle which prompted two other officers to enter the house to help subdue him.
The defense witnesses testified to a similar chain of events but denied any assault. The defendant testified that he began struggling because the officer put the handcuff on his left wrist too tightly and injured his neck as they held him.
The defendant's first assignment of error is that the arrest of the defendant was unlawful thus he cannot be properly charged with resisting an officer. It appears from the facts of this case that the officers effected the arrest pursuant to 22 O.S.1971, § 196 based upon information communicated to them from the victim of the burglary. The defendant's cited authority does not support his assignment of error. We have held in the past, and apply that holding here, that an officer may arrest at night without a warrant, any person, whom the officer has reasonable cause to believe, has committed a felony, even though it appears afterward that the felony had not been committed. See Russell v. State, Okl.Cr., 433 P.2d 520 (1967). This assignment of error is without merit.
For his second assignment of error, the defendant complains that the trial judge erroneously admitted evidence of a separate offense (assault and battery of Officer Logan). The defendant cites Edmondson v. State, Okl.Cr., 527 P.2d 190 (1974) which applies the res gestae exception allowing the admission of evidence of a separate offense. The defendant argues that evidence of the assault and battery on Officer Logan is not part of the res gestae of the offense charged.
Even the most cursory examination of the record reflects that the evidence of the assault complained of was a part of the res gestae and therefore was properly admitted. In Edmondson v. State, supra, we held:
'. . . where proof of one offense forms the res gestae, such as in the instant case, the evidence is not inadmissible when it tends to prove defendant's guilt of the offense on trial although it may also prove him guilty of another offense.'
It was not error to admit this evidence.
The defendant's third assignment of error is an assertion that the trial judge erred in refusing to disqualify. The defendant urges that the trial judge should have been disqualified under...
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