Ryan v. State
| Decision Date | 26 February 1969 |
| Docket Number | No. A--14803,A--14803 |
| Citation | 451 P.2d 383 |
| Parties | James Patrick RYAN, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court
1. To properly preserve for presentation on appeal the alleged error in the reception of hearsay evidence, the accused should have objected to such evidence at the time it was introduced and moved to exclude the same from the consideration of the jury.
2. Where alleged hearsay evidence is received without objection, it will not ordinarily constitute reversible error unless the Court of Criminal Appeals can see that the reception of such evidence was so prejudicial and grossly violated the rights of the accused, that he was denied a fair and impartial trial.
3. Defendant who alleges he was held for unreasonable time after arrest and before being taken before a magistrate, has the burden to show prejudice or any deprivation of rights, and this must be raised in the trial court and appear of record to be considered on appeal.
4. The Constitution of Oklahoma, Art. 2, Sec. 17, authorizes prosecutions for felonies by information after examination and commitment by a magistrate or by indictment by a grand jury. These are concurrent remedies and the prosecution may be by either mode.
An appeal from the District Court of Oklahoma County; Carmon C. Harris, Judge.
James Patrick Ryan was convicted of Robbery with Firearms and appeals. Affirmed.
Don Anderson, Public Defender, Oklahoma County, for plaintiff in error.
G. T. Blankenship, Atty. Gen., Charles L. Owens, Asst. Atty. Gen., for defendant in error.
Plaintiff in error, James Patrick Ryan, hereinafter referred to as the defendant, was convicted of the crime of Robbery with Firearms in the District Court of Oklahoma County, and sentenced to 25 years in the penitentiary. From that judgment and sentence he has appealed to this Court.
From the record it appears that the defendant was charged with entering the Davis Drug Store on July 8, 1967, and made an assault upon Jack Houts with a loaded pistol. While Jack Houts was under fear and restraint, defendant took $93.00 in cash and a large quantity of narcotics from his person, of and in his immediate presence.
The state presented its evidence of the events of July 8, 1967, through several witnesses. Mrs. McDonald testified that on July 7, 1967, she was working on her job as a clerk at the C. R. Anthony store at N.W. Tenth and Rockwell, Oklahoma City, Oklahoma. On this evening, she observed a white 1967 Chevrolet with two occupants. They appeared suspicious to her and she wrote down the license number of the car; on the witness stand she incorrectly remembered the number to be: Kansas JO 76625. On July 8, 1967, the car again appeared in the shopping center at 11:45 a.m. She identified one of the occupants as the defendant. He entered the West Oaks Drug Store with a gun in his pocket. She called the drug store to warn them of a robbery and again wrote down the license number: Kansas JO 67725. This number was verified by state's exhibit 5.
Several state witnesses testified that shortly before noon on July 8, 1967, a 1967 white Chevrolet with a Kansas tag entered the parking lot of a laundromat at 6620 N.W. 23 Street. There were two occupants, and the manager asked one to move the car. The other had entered the neighboring drug store.
Mr. Houts, the pharmacist and owner of the Davis Drug Store, testified that at noon a man from a 1967 white Chevrolet entered the store and asked about sun glasses. After some time he left. Shortly thereafter, the other occupant of the car entered the store. Houts identified this man as the defendant. After allegedly shopping for a camera for some time, he pulled a gun on Houts and robbed him of $93 and some narcotics.
A lady in the laundromat testified that she saw a man, identified as defendant, leave the drug store between 12:30 and 1:00 p.m. carrying a sack. Other witnesses testified that the defendant was in the area of the laundromat at this period of time.
Another witness, a Mr. Nakeamura, testified that between 2:00 and 3:00 p.m. on July 8, 1967, while watching television in his apartment at 6803 1/2 N.W. 13 Street, a man, identified as defendant, asked if he could enter and watch television with him. Defendant was a stranger but Nakeamura admitted him. After defendant entered, policemen arrived and arrested the defendant.
Police officers testified that a narcotic taken from the robbery of the Davis Drug Store was found on the defendant at the time of the arrest. Permission was obtained from the defenant to search a 1967 white Chevrolet parked outside the building. A Kansas tag numbered JO 67725 and various clothing witnesses described defendant as wearing were found in the trunk, along with a paper sack and a gun.
The defendant did not testify nor offer any evidence.
Defendant attempts to allege in his first proposition that 'probably error occurred' in the testimony of Officer Legg at page 82 of the casemade, wherein he testified that he had been told by a Mr. Nakeamura upon entering his apartment that he, Nakeamura, was not acquainted with the defendant and that the defendant merely ran into their apartment saying that his television was out of order and that he wanted to watch television with him. The defendant had told him (Nakeamura) that 'the cops were outside looking for a robber'.
Defendant does not allege just how this was error, nor cite any law to support it. Ordinarily, this Court would not consider it under these circumstances, however, we will briefly discuss several points of law, which are pertinent in the propr disposition of this cause.
With regard to defendant's first proposition of error, there is some question as to whether this testimony by the officer, supra, was hearsay testimony. It is important to note here that the testimony was admitted Without objection, so the defendant cannot now complain. See Walker v. State, 97 Okl.Cr. 367, 265 P.2d 499. Secondly, the testimony was properly admitted as an exception to the hearsay rule in the instant case. This statement was made to the officer in the presence of the defendant. If the defendant did not agree, he could have spoken up and corrected Nakeamura at the time the statement was made. Defendant's brief cites a case stating that an accusatory statement is not admissible in evidence, but this case, McGrew v. State, Okl.Cr.App., 293 P.2d 381, 382, holds, in effect, that an accusatory statement made in the presence of the accused may be admitted as an exception to the hearsay rule, because if the defendant hears the statement, he may object. However, once the defendant is in custody, or under the control of the officers, this is no longer true and he can no longer be expected to object to accusatory statements. This particular statement in the instant case was made in the presence of the defendant before he was placed under arrest or placed in custody. He was under no restraint and could have freely denied the...
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