Jackson v. State

• Decision Date: 13 May 1948
• Docket Number: A-10840.
• Citation: 193 P.2d 895,86 Okla.Crim. 420
• Parties: JACKSON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

193 P.2d 895

86 Okla.Crim. 420

JACKSON v. STATE.

No. A-10840.

Court of Criminal Appeals of Oklahoma

May 13, 1948

Appeal from District Court, Tulsa County; Harry L. S. Halley, Judge.

E. R Jackson was convicted of burglary second degree, a second offense, and he appeals. The case has been advanced on the docket for reason that defendant is unable to make bail and is now confined in State Penitentiary.

Modified and affirmed.

Syllabus by the Court.

1. A case will not be reversed for insufficiency of evidence where testimony of the State standing alone is sufficient, if credited by the jury, to show defendant's guilt.

2. Matters occurring in open court during progress of a trial must be placed in the case-made by recitals certified to by the judge who presided at the trial of the cause before the same will be considered by the Criminal Court of Appeals.

3. The Criminal Court of Appeals will only consider those questions which are incorporated in the motion for new trial and thereby submitted to the trial court for its ruling thereon, excepted to, and afterwards assigned for error, unless the question is jurisdictional.

4. The judgment in a criminal case and the recitals therein contained offered in evidence on the question of a prior conviction to sustain the charge of second offense constitutes the best evidence of the nature of the conviction therein had.

5. The court did not err in instructing jury on issue of prior conviction as follows: 'You are instructed that in determining the guilt or innocence of the defendant of the charge alleged in the information in this case, that you will not consider the question as to whether or not the defendant had previously committed a felony in this state and been convicted therefor. However, if you do find the defendant guilty beyond a reasonable doubt, from the evidence adduced and under the instructions given in this case; and further find from the evidence beyond a reasonable doubt that he was previously convicted of a felony in the State of Oklahoma then in determining the punishment to be inflicted you may take into consideration such former conviction of a felony, if any, and fix the punishment to be inflicted at not less than ten years, as provided by statute. However, if you fail to find from the evidence beyond a reasonable doubt that the defendant has been previously convicted of a felony, then the limits of punishment which may be inflicted upon the defendant, in the event you do find from the evidence, beyond a reasonable doubt, that he is guilty of burglary in the second degree as charged in the information in this case, are from two to seven years, that is to say, not less than two, nor more than seven years.'

6. Under the provisions of Title 22 O.S.A. § 406, when an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.

7. The actual status of the legal title to stolen property is no concern of the thief; so far as he is concerned, one may be taken as the owner who is in possession of the property and was unlawfully disturbed by the taking.

8. In a burglary case one in lawful possession of property may be regarded as the owner thereof as respects necessity of showing that property taken was without consent of the owner.

9. Sentence of fifty years imprisonment in State Penitentiary upon conviction for burglary in the second degree, second offense, was excessive and sentence is modified to a term of fifteen years imprisonment in State Penitentiary.

E. R. Jackson, pro se.

Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

BRETT Judge.

The defendant herein was charged, tried, convicted and sentenced for second degree burglary second offense to a term of fifty years in the penitentiary. The defendant demurred to the State's evidence, offered no evidence in his own behalf though he was represented by able counsel, therefore, the State's case stands uncontradicted. In substance, it shows that on the night of February 15, 1945, Cecil Brown and Ray Billings, newspaper men in Tulsa, Oklahoma, heard the crash of a show window in the Peacock Jewelry Company located at 404 South Main. Both Brown and Billings testified that they were on their way to get an early morning snack at a cafe when they heard the crash of the show window. They testified they saw the defendant in front of the show window stick his arm through the broken glass, remove articles therefrom, put them in his pocket and run. They testified further that they followed him down the alley and saw him attempting to hide. They also said they saw him climb a fence near the courthouse in making his getaway. It is apparent that they had ample opportunity to see and observe him and were in position to make positive identification of defendant. There were others in the party who heard the crash of the window but who did not have the opportunity to observe defendant to the point of identification as did Brown and Billings. There being nothing in the record to the contrary, the jury believing the identification sufficient to find the defendant guilty of burglary in the second degree, the verdict of the jury is well grounded from the standpoint of evidence. The store was under the management of David L. Krakower and in his possession. He testified that there were certain watches and articles missing from the window that were there before the burglary. He testified Harry Goldstein owned the store. The State plead and offered as evidence of the defendant's second offense the information, and judgment and sentence, in cause No. 9561. The information alleged in substance the burglary of the Goldberg Jewelry store on November 7, 1939, and plead as the basis for second offense, the defendant's prior plea of guilty on January 11, 1935, to the charge of second degree burglary. The defendant's demurrer to the evidence is, therefore, without merit for a 'case will not be reversed for insufficiency of evidence where testimony of the state is sufficient, if credited by jury, to show defendant's guilt.' Todd v. State, Okl.Cr.App., 172 P.2d 345, 346, [not yet reported in State reports].

The defendant has prepared a voluminous brief in his own behalf much of which is devoted to a discussion of matters clearly outside the record, and constitutes no basis for our consideration herein. Under the law we will consider only such matters as appear in the record of the trial below, reflected in the case-made. This has long been the rule in this jurisdiction as was said in Territory v. Cooper, 11 Okl. 699, 69 P. 813:

'5. The purpose of a case-made is to bring into a record for the appellate court all the records, files, testimony, rulings, exceptions, and proceedings in said cause in the trial court; but extrinsic matters constituting no part of the record or proceedings in the trial court cannot be incorporated into the case-made, so as to bring such matters before the appellate court.'

Also in Beatty v. State, 5 Okl.Cr. 105, 113 P. 237:

'1. Matters occurring in open court during the progress of a trial cannot be incorporated in the case-made by affidavits, but must be placed in the case-made by recitals certified to by the judge who presided at the trial of the cause.'

In the body of the opinion at page 107 of 5 Okl.Cr., page 237 of 113 P., it is said:

'The only presumption which the law indulges in favor of a defendant in a criminal case is that of innocence, and, when this presumption is overcome by a conviction, the presumption then prevails that the verdict of the jury is right, and that all of the proceedings in a court of record are regular unless the contrary affirmatively appears. There is no presumption against the regularity of the proceedings in a court of record.'

See Cochran v. State, 4 Okl.Cr. 390, 111 P. 978.

Moreover, this court cannot consider objections raised by petitioner in his petition in error and in his brief which were not incorporated in his motion for new trial. Obviously the trial court should have an opportunity to consider any matters to which the defendant objects and be given the opportunity to correct its own mistakes before they can form the basis for an appeal. This court has repeatedly so held. In Todd v. State, supra, this Court said:

'3. The Criminal Court of Appeals will only consider those questions which are incorporated in the motion for a new trial and thereby submitted to the trial court and its ruling thereon excepted to and afterward assigned for error unless the question is jurisdictional.'

The petitioner's motion for new trial and his assignments of error raise no jurisdictional questions.

In Johnson v. State, Okl.Cr.App., 155 P.2d 259, [not yet reported in State reports], after stating with approval the foregoing rule, it is said that the only exception to this rule is applied in capital cases where the accused has been sentenced to death upon a plea of guilty. For other expressions of the general rule in cases supra, see Oswalt v. State, 51 Okl.Cr. 338, 1 P.2d 793; Mobbs v. State, 52 Okl.Cr. 64, 2 P.2d 974; Langley v. State, 53 Okl.Cr. 401, 12 P.2d 254; Ballew, et al. v. State, 55 Okl.Cr. 247, 28 P.2d 993; Tuggle v. State,

73 Okl.Cr. 208, 119 P.2d 857; Herren v. State, 74 Okl.Cr. 424, 127 P.2d 215; Palmer v. State, 78 Okl.Cr. 220, 146 P.2d 592.

Since the trial court had no opportunity to consider on the motion for new trial matters set forth in assignments of error No 10, 11 and 12, we shall not consider them, and for the further reason that they are in relation to matters not appearing in the case-made. We can...