Neal v. State
| Decision Date | 13 February 1973 |
| Docket Number | No. A--17854,A--17854 |
| Citation | 506 P.2d 936 |
| Parties | James Thomas NEAL, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court
1. When a defendant, jointly charged with others, appears for trial, announces ready, and the jury is impaneled, he has waived any right to object to being tried separately.
2. Where there is competent evidence in the record from which the jury could reasonably conclude that the defendant was guilty as charged, the Court of Criminal Appeals will not interfere with the verdict, even though there is a sharp conflict in the evidence and different inferences may be drawn therefrom, since it is the exclusive province of the jury to weigh the evidence and determine the facts.
3. The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abrogated, and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, must be prosecuted, tried and punished as principals, and no additional facts need be alleged in any indictment or information against such an accessory than are required in an indictment or information against his principal. (22 O.S. § 432)
4. An accessory to the commission of a felony may be prosecuted, tried and punished, though the principal felon be neither prosecuted nor tried, and though the principal may have been acquitted. (22 O.S. § 433)
5. When an objectionable statement is made by the prosecution, it should be called to the attention of the court by timely objection, together with a request that the jury be instructed to disregard the improper statement and in the event that the objection is overruled, an exception should be taken to the ruling of the court, preserved and argued in the Motion for New Trial. When this is not done the defendant is deemed to have waived any objection unless the remarks are so fundamentally prejudicial that the court cannot, by instructions to the jury, correct such error.
6. Generally, remarks of the prosecuting attorney, including such as might or would otherwise be improper, are not grounds for reversal where they are invited, provoked, or occasioned by accused's counsel or in reply to or retaliation for his acts or statements.
An appeal from the District Court of Comanche County; Jack Brock, Judge.
James Thomas Neal was convicted of the crime of Illegal Sale of Heroin; was sentenced to serve eighteen (18) months in the state penitentiary, and appeals. Affirmed.
Max Cook, Lawton, for appellant.
Larry Derryberry, Atty. Gen., Michael Jackson, Asst. Atty. Gen., for appellee.
Appellant James T. Neal was charged conjointly with John David Freed and Sanford Schor for the offense of Illegal Sale of Heroin to one Carol Kay McConnell on the 13th day of May, 1971, in the District Court of Comanche County, Case No. CRF--71--271, in violation of 63 O.S. § 402. The case was called for trial on the 21st day of September, 1971, but prior thereto, on September 20, 1971, Sanford Schor Filed a Motion for Continuance which was granted by the court. John David Freed jumped bond and on the 21st day of September, 1971, Appellant Neal, hereinafter referred to as defendant, announced ready for trial, the jury was impaneled, and the State proceeded to offer the testimony of Carol Kay McConnell when the following occurred:
Thereafter, the trial proceeded without the defendant ever objecting to being tried without his co-defendant, and he was sentenced to serve eighteen (18) months in the state penitentiary.
The defendant contends that it was error for him to be forced to trial without his co-defendants and without a severance having been granted, but cites no authority in support thereof. Counsel for defendant apparently has overlooked Wilkins v. State, 80 Okl.Cr. 142, 157 P.2d 764, where an almost identical situation existed. In Wilkins, supra, the defendant therein had been charged jointly with two others with the crime of Larceny of Livestock. The case was called for trial and neither co-defendant was present. The defendant and the State announced ready for trial and the jury was impaneled and sworn. Opening statements were presented and reserved. Counsel for the defendant made no objection regarding the absence of the co-defendants, however, at that stage of the proceedings, after moving for a directed verdict, an oral objection was made to the taking of evidence for the reason that the co-defendants were not in the court room and were not present at the time the jury was impaneled. After a brief discussion the State moved for a severance which was granted and the trial proceeded. The defendant had made no attempt to object to his co-defendants' absence during the impaneling of the jury and the Court concluded that he undoubtedly knew that they had never had a preliminary hearing and could, therefore, not be tried at that time. In Wilkins v. State, Supra, we stated:
'We think the proper rule would be that the request for a severance should be made before the exercising of the right of challenge to the jurors, But we are also of the opinion that the defendant by his conduct has waived any right he may have had to a joint trial with his codefendants . . ..' (Emphasis added)
Citing a California case, this Court also stated in Wilkins, supra, as follows:
In light of Wilkins v. State, Supra, we are not of the opinion, and therefore hold, that when a defendant, jointly charged with others, appears for trial, announces ready, and the jury is impaneled, he has waived any right to object to being tried separately. Particularly is this true when one of the defendant has 'jumped bond' and the other has been granted a continuance prior to trial.
Defendant further contends that the evidence of the State was wholly insufficient to support the verdict of the jury in that the evidence failed to establish that the defendant 'wilfully' sold a narcotic durg. In support of this contention defendant argues:
'The testimony of the State in this case is completely silent as to anything tending to show that the Defendant in this case had knowledge of anything that he was supposed to have allegedly delivered, in the way of a drug or drugs, to the State's witness (C--M 17) to the effect that the Defendant herein handed her a silver packet and she may have stated something to the effect that he said it was heroin, but her statement was very inconclusive and the District Attorney did not go into it in any manner whatsoever thereafter.'
The record discloses that after having their vehicle and persons searched, Carol Kay McConnell and Vickie Harrell were followed to the residence located at 1616 North 17th, Lawton, Oklahoma, where they entered the premises. (Prior thereto, Carol Kay McConnell was given a twenty dollar and a five dollar bill by Deputy Sheriff Larry LaFrance). The house remained under surveillance and nothing occurred except that a man came out on the porch and re-entered shortly thereafter, and a person arrived at the residence on a motorcycle and entered the premises. The testimony of Carol Kay McConnell and Vickie Harrell was that upon arriving at the premises Carol attempted to purchase narcotics from John David Freed, but that he had none and that he talked on the telephone to Sanford Schor, as did Carol, and after these conversations the defendant Neal arrived on a motorcycle, entered the premises where he sold narcotics to Carol Kay McConnell for $25.00. The pertinent testimony on behalf of the State relating to the sale appears in the record as follows, after defendant Neal had arrived at the premises on a motorcycle:
'Q. And did you hang up the phone at that time?
A. Yes, I did.
Q. And what did you do after you hung up the phone?
A. Well, he was at the door by then, and so he walked in and--
Q. Did you have a conversation with him at this time?
A....
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