Prock v. State, F--74--635
| Decision Date | 04 November 1975 |
| Docket Number | No. F--74--635,F--74--635 |
| Citation | 542 P.2d 522 |
| Parties | Timothy Charles PROCK, Appellant, v. The STATE of Oklahoma. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appellant Timothy Charles Prock, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Tulsa County, Case No. CRF--73--1876, for the offense of Carrying Firearms, After Former Conviction of a Felony, in violation of 21 O.S.1971, § 1283. His punishment was fixed at a term of five (5) years' imprisonment. From said judgment and sentence, a timely appeal has been perfected to this Court.
At the trial Charles Cravens testified he was employed by the Tulsa Police Department, Patrol Division. On October 1, 1973, at approximately 4:30 p.m., he was dispatched to South 51st Street and Harvard, in Tulsa, Oklahoma, to check on a 'suspicious' car. Upon arriving at that location he observed a 1964 black over maroon Chevrolet automobile parked on the west side of a Git-N-Go store located in that vicinity. When he pulled into the area in which the Chevrolet was located, he noticed the license tag number and that a male occupant was inside the automobile, being over the back of the seat. Officer Cravens further testified that as he pulled into the parking lot the occupant of the Chevrolet started the car, but as the officer pulled alongside he turned off the engine. Officer Cravens then identified the defendant in court as the person he had observed in the 1964 Chevrolet. After pulling alongside the defendant, Officer Cravens exited his patrol unit and walked up to the defendant's automobile. He asked the defendant for some identification and the defendant reached into his back pocket and pulled out two pieces of paper. The defendant attempted to palm a draft card in his right hand to keep the officer from seeing it, but Officer Cravens was able to observe that it bore a different name from the defendant's. Officer Cravens then asked the defendant to step out of his car and as the defendant did so Officer Cravens observed the butt of a gun. Officer Cravens then 'frisked' the defendant, removing a loaded .32 caliber Colt revolver from the defendant's waistband. Officer Cravens finally testified that in his opinion the gun was capable of firing a projectile.
The State then rested.
Peggy L. Prock testified for the defendant and stated that she was the wife of the defendant. She stated they were married on the 21st of December, 1973, and that the .32 caliber Colt pistol, previously introduced in evidence as State's Exhibit No. 3, was owned by her and that she had bought the pistol for her own protection. She stated that the last time she had seen the gun was on September 28, 1973, at the Bomber Lounge, a club where she worked part time, and where she had brought the pistol, along with a sack of bullets. When she had last seen the pistol, it was in the back storeroom of the Bomber Lounge. On October 1, 197o, she called Ronald Knight, owner of the lounge, and asked him to bring the pistol to her.
Ronald Knight testified he was the owner of theBomber Lounge on October 1, 1973. He stated that Peggy Prock had left the pistol, State's Exhibit No. 3, at his club on a previous occasion, and as the result of a telephone call from her he placed the pistol in a sack with the intention of delivering it to her. Instead, he took the sack containing the pistol to the defendant at a Git-N-Go store and asked the defendant to take it to Peggy because he had to get back to the club and attend to his 'after work crowd.' It was approximately 3:30 or 4:00 p.m. on October 1, 1973, when he delivered the pistol to the defendant.
On cross-examination he testified the gun was not loaded when he delivered it to the defendant and that the cartridges were in the sack with the gun.
Thereafter, both sides rested and the case was submitted to the jury who found the defendant guilty of carrying a concealed weapon.
The court then proceeded into the second stage of the trial.
Through Mr. Don Austin, Tulsa County District Court Clerk, the State presented evidence that the defendant had been previously convicted of 15 felonies.
The State then rested.
Peggy Prock, defendant's wife, testified in behalf of the defendant stating that she had bought the gun, State's Exhibit No. 3, for her own protection. She stated that her ex-husband, over a period of years, had threatened her life and had brutally beaten her on more than one occasion. These beatings had resulted in a broken nose, fractured ribs and a skull fracture, and that on numerous occasions these beatings had required hospitalization, a fact which she had related to her husband, the defendant. She then testified as to numerous specific incidents of maltreatment at the hands of her ex-husband, including one occasion when she was attacked by her ex-husband in the presence of the defendant, who intervened in an attempt to assist her.
The defendant then presented three other witnesses, all of whom corroborated Peggy Prock's testimony concerning the beatings and harassment which she had sustained from her ex-husband.
Defendant's first assignment of error asserts the trial court erred in overruling his demurrer to the evidence. Under this assignment, the defendant contends that the State failed to prove that State's Exhibit No. 3, the gun, was dangerous or deadly by showing that the gun was capable of firing a projectile. With this contention we cannot agree. Officer Cravens testified that State's Exhibit No. 3 was a .32 caliber Colt double action gun. He further testified that it was a real gun and was capable of firing a projectile. Further, the record reveals that the State attempted, through Officer Cravens, to show that the gun actually would work; however, the defendant objected and the trial court sustained the objection, allowing Officer Cravens to testify only that the gun worked, but not allowing him to show that the gun worked. It is therefore our opinion that the State did present sufficient evidence to show that the gun in question was one clearly prohibited by 21 O.S.1971, § 1283, the statute prohibiting a person convicted of a felony from carrying a gun on his person. We therefore find this assignment of error to be without merit.
Defendant's second assignment of error asserts he was not properly arraigned on the second page of the information filed by the State, this being the part of the information which alleged the former felony convictions.
The record reveals that the defendant requested a two page information with the second page alleging the former felonies. The defendant further requested that he be tried in a two stage proceeding which is contrary to our holding in Marr v. State, Okl.Cr., 513 P.2d 324 (1973), which states:
'We thus conclude that because of the passage of 21 O.S. § 1289.7 that the previous convictions of a felony is a necessary element of the crime charged which should be pleaded and proven during the State's case in chief in a one stage proceeding. . . .'
Both of defendant's requests were granted by the trial court and the defendant was tried in a two stage proceeding. The defendant now contends that he was never arraigned on that portion of the information which charged 'after former conviction of a felony.'
The record before this Court reveals that on February 19, 1974, the defendant appeared...
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