Tice v. State
| Decision Date | 04 May 1955 |
| Docket Number | No. A-12133,A-12133 |
| Parties | Jimmy Joe TICE, 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. Proof of a prior conviction, on second and subsequent charge is made first, by offering in evidence, the indictment, or information, judgment, sentence, and commitment; and, that the defendant, in the case on trial, is one and the same person as the defendant in the prior conviction; and, second, that the conviction is final, and not appealed from, or if appealed from, that final disposition has been made of the same, adverse to the defendant, or by showing the defendant's judgment and sentence has been suspended. The latter elements may be established by circumstantial evidence.
2. Under the provisions of T. 21, § 54, O.S.1951:
'Every person who has been convicted in any other State, government or country of an offense which, if committed within this State, would be punishable by the laws of this State by imprisonment in the penitentiary, is punishable for any subsequent crime committed within this State, * * * and to the same extent as if such first conviction had taken place in a court of this State, as a second or subsequent offender.'
3. Breaking and entering is an essential element to constitute burglary in Oklahoma, but breaking as an element of burglary may be either actual, or constructive.
4. The gist of the offense of burglary is the breaking and entering.
5. Under the provisions of T. 21, § 54, O.S.1951, the question of the admissibility of an indictment, or information, in support of a conviction for a felony had in any other state, government, or country, first presents a judicial question to the trial court, as to whether the offense, or acts, plead in the charge on which a conviction has been obtained, if committed in Oklahoma, would be punishable by the laws of this state by imprisonment in the penitentiary; if the answer is in the affirmative, then the foreign indictment, or information and conviction, may be considered, with proof of the other essential elements on a charge of second or subsequent offense.
6. T. 22, § 831, O.S.1951 provides that where an indictment, or information is for a felony, the Clerk, or County Attorney must read it, to the jury. This provision is mandatory, and while good practice, might suggest a deletion of all irrelevant, and possibly prejudicial matter in relation to a codefendant, under the provisions of the said Statute, it is not reversible error to read such an indictment, or information, to the jury without a deletion of the irrelevant matter, and whether such matter is deleted, is within the sound judicial discretion of the trial judge, which, in the absence of abuse will not be interfered with.
7. Rebuttal evidence is proof of facts tending to explain, repel, counteract, or disprove matters given in evidence on the other side, which evidence tends to clarify a disputed point, notwithstanding the fact that the same testimony might have been introduced in chief, and the matter of admissibility of such evidence is within the discretion of the trial court.
8. Where the instructions as a whole fairly and correctly state the law applicable to the case, they are sufficient.
Appeal from the Superior Court of Comanche County; Robert S. Landers, judge.
The plaintiff in error, Jimmy Joe Tice, defendant below, was convicted for the crime of burglary in the second degree, sentenced to 10 years in the State Penitentiary, and he appeals. Affirmed.
Githen K. Rhoads, David J. Aubrey, Lawton, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
Plaintiff in Error, Jimmy Joe Tice, defendant below, was charged by information, in the Superior Court of Comanche County, Oklahoma, with having on or about January 17, 1954, committed the crime of burglary in the second degree, T. 21, § 1435, O.S.1951, a second and subsequent offense, T. 21, § 54, O.S.1951, after a prior conviction in the State of Texas. The crime charged herein was allegedly committed in the nighttime in said County and State, by breaking and entering the south door of a certain beer tavern, and taking, stealing, and carrying away, with felonious intent, from said premises, lawful money, belonging to one R. C. Cross. The defendant was tried by a jury, convicted, his punishment fixed at 10 years in the penitentiary, judgment and sentence was entered accordingly; from which this appeal has been perfected.
The first contention advanced by the defendant is that:
'The Court committed reversible error in refusing to strike from the evidence State's Exhibits 1, 2, and 3, being the indictment, judgment and sentence of the Texas Court; and in overruling the special demurrers relative to the second and subsequent felony at the close of the State's evidence and at the close of all the evidence.'
The foregoing contention is predicated upon the proposition that, the State of Oklahoma offered in evidence, Exhibits 1, 2, and 3, being the indictment, judgment, sentence, and commitment made and entered on a charge of burglary in the District Court of Wichita County, Texas. In said documents, it was recited that the defendant had plead guilty to the crime of burglary in said District Court of the State of Texas, on or about April 28, 1947. It appears, at the trial of the within case, said Exhibits 1, 2, and 3, were properly identified, and Jimmy Joe Tice, the defendant herein, was identified as the defendant therein, all by competent evidence. In this connection, the defendant urges that the proof of certain essential elements of the prior conviction were lacking. It has been held in this jurisdiction that the best method of proving a prior conviction is made, first by offering in evidence the indictment, or information, judgment, sentence, and commitment. Proof of the fact should then be made that the defendant, in the case on trial, is one and the same person as the defendant in the prior conviction relied upon to establish the offense of a second or subsequent conviction. Further proof should be made that the judgment and conviction is final, and not appealed from, or if appealed from, that final disposition has been made of the same, adverse to the defendant. If the defendant's judgment and sentence has been suspended, that fact should be shown. Morse v. State, 63 Okl.Cr. 445, 77 P.2d 757; Spann v. State, 69 Okl.Cr. 369, 103 P.2d 389; Bird v. State, 85 Okl.Cr. 313, 188 P.2d 242. Defendant admits that Exhibits 1, 2, and 3, were admissible per se, but he asserts that there was no proof that the judgment and sentence was a final judgment.
In the case at bar, however, all the latter elements appear circumstantially. The indictment introduced into evidence is not questioned. The conviction therein was on a plea of guilty on the indictment for the burglary of a house, by breaking into and entering. The finding of defendant's guilt by the court was entered thereon on May 13, 1947, without suspension thereof, or objection and exception thereto; and no appeal was perfected therefrom. In the judgment entered on May 13, 1947, it appears that Jimmy Joe Tice was sentenced to confinement in the penitentiary for a term of two years, and he was committed as follows:
The foregoing facts established prima facie, the finality of the judgment and sentence. The defendant offered no evidence to contradict this prima facie showing. To the contrary, his father testified he had personal knowledge of defendant's conviction, sentence, and incarceration in 1947. We are therefore of the opinion that proof of the prior conviction in Wichita County, Texas, of a prior burglary, and its finality, was sufficiently established by circumstantial evidence to fulfill the requirements of the law.
Next, the defendant contends:
'No competent evidence was presented by the State of Oklahoma to establish that the acts committed in the foreign jurisdiction, and defined as an offense under the laws of the foreign jurisdiction, if committed in the State of Oklahoma at the time they were committed in the foreign jurisdiction, constituted a crime under the laws of the State of Oklahoma punishable by imprisonment in the Penitentiary in the State of Oklahoma.'
In support of this contention, defendant concedes such proof of the Texas indictment was properly made, wherein it was alleged, in substance, as follows:
'* * * that Jimmy Joe Tice, hereinafter called defendant on or about the 28th., day of April A.D., 1947 and anterior to the presentment of this indictment, in the County of Wichita and State of Texas, did then and there unlawfully, by force, threats, and fraud, break and enter a house there situated and occupied and controlled by one V. N. Mills hereinafter called owner, without the consent of said owner, then and there with the intent of said defendant fraudulently to take, steal and carry away from and out of said house the corporeal personal property then and there in said house belonging to said owner, * * *.'
Thereafter, the State of Oklahoma introduced the finding of the guilt on the defendant's plea of guilty to the foregoing charge, and further introduced the judgment, sentence, and commitment. Defendant does not question the proof of the foregoing proceedings, or the validity of the documents by which it was established. He seeks to sustain this contention, by placing emphasis on the...
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