Moser v. State, A--17163
| Decision Date | 13 April 1973 |
| Docket Number | No. A--17163,A--17163 |
| Citation | 509 P.2d 184 |
| Parties | Terry Lee MOSER, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appellant, Terry Lee Moser, hereinafter referred to as defendant, was convicted, without a jury, in the District Court of Cleveland County, Case No. CRF--71--230, of Omitting to Provide for Minor Children, and sentenced to thirty days imprisonment in the county jail. Judgment and sentence was imposed on September 20, 1971, and this appeal perfected therefrom.
Affirmed.
It was charged by information that on or about January 1, 1971, the defendant omitted to furnish the necessary food, shelter, and medical attention for his two minor children, without lawful excuse, defendant being liable for their support under the law. After a showing of indigency, the defendant was represented at the trial and on appeal by court appointed counsel.
On appeal defendant urges two assignments of error; first, the admission into the court file of a prejudicial letter; and secondly, the insufficiency of the evidence to sustain a conviction.
The prosecution against the defendant was instigated with the filing of a complaint by defendant's former wife and mother of the two children in question. A letter from an attorney representing the complaining witness, to the district attorney, complaining of the lack of diligence in the prosecution, was filed and made a part of the court record. As the trial began, the defense counsel objected to the presence of the letter in the file since it contained statements not under oath. The trial judge agreed with the defendant that the letter was highly improper, immaterial, she should not be considered. The court then admitted that he had seen the letter and then asked counsel for both sides if they desired to have the cause transferred to another judge. The defense counsel made no such request and stated The trial judge then overruled defense's motion to dismiss the prosecution, and directed the letter to be stricken from consideration.
In substance, the letter in question complains that the district attorney was not prosecuting with full diligence. Although the letter and its contents are immaterial and incompetent evidence, we do not find that the presence of the letter in the record of the trial court was of such a highly prejudicial nature to the defendant, that it denied him a fair trial. It is a familiar rule of this court that on appeal the burden of establishing prejudice from the admission of incompetent evidence is upon the defendant. Friday v. State, Okl.Cr., 348 P.2d 1083 (1960). Although the matter was...
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Romano v. State
...On appeal, the burden of establishing prejudice from the admission of incompetent evidence is upon the defendant. Moser v. State, 509 P.2d 184, 185 (Okl.Cr.1973). In this case, the rope was received by the police from Denise Howe. She took the rope out of the closet shared with Woodruff at ......
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Woodruff v. State
...On appeal, the burden of establishing prejudice from the admission of incompetent evidence is upon the defendant. Moser v. State, 509 P.2d 184, 185 (Okl.Cr.1973). In this case, the rope was received by the police from Denise Howe. She took the rope out of the closet shared with Appellant at......
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Borden v. State, C-83-170
...consider only competent and admissible evidence in reaching decisions. See Fox v. State, 556 P.2d 1281 (Okl.Cr.1976); Moser v. State, 509 P.2d 184 (Okl.Cr.1973). This is a pragmatic approach that is fully justified; it would be unrealistic to pretend trial judges do not already know about w......
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Gamble v. State
...the admission of the pistol was prejudicial, the burden of establishing prejudice is on the defendant. As stated in Moser v. State, Okl.Cr., 509 P.2d 184, at 185 (1973): '. . . It is a familiar rule of this court that on appeal the burden of establishing prejudice from the admission of inco......