OPINION
The appellant, Gary Wayne Baker, hereinafter referred to as defendant, brings this appeal from a conviction, following a jury trial in the Oklahoma County District Court, аnd sentence of from ten (10) years to life imprisonment for Murder in the Second Degree in the death of Raymond Davidson, a railway employee, on August 5, 1975. Defendant and сo-defendant Bennie Lott were conjointly charged, but the case was severed for trial. The State proved at trial that when defendant and Bennie Lott ran out оf gas they sought aid from Davidson, who was repairing a railway signal light. When Davidson refused them assistance, he was hit in the head with a hammer and shot.
The first assignment of error is that defеndant’s motion to quash the information should have been sustained, as the evidence presented at the preliminary hearing was insufficient to justify ordering defendant held for triаl. Defendant also complains that hearsay evidence of the confession of accomplice Lott was admitted at the preliminary hearing. We notе, however, that defendant at no time objected to the admission of the testimony, so any possible error was waived. But even without that testimony, there was sufficient evidеnce presented to justify holding the defendant for trial.
When Davidson’s body was discovered at 6:30 a. m., there was an abandoned car at the scene and Davidson’s railway truck was missing. Lott and defendant had been seen driving the abandoned car between 2:00 and 3:00 a. m. The railway truck was found six blocks from the home
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of defendant’s nephew, wherе defendant and Lott changed clothes at 4:30 a. m. and borrowed a car. During the autopsy, a pathologist removed a .25 caliber bullet from Davidson’s body. When Lott was arrested there was a .25 caliber automatic pistol on the front floorboard on the passenger side of the car. Upon defendant’s arrest, he was carrying а box of .25 caliber ammunition in his pocket. It is well settled that the State is not required at preliminary hearing to produce more evidence than that required to show an offense was committed and that there are reasonable grounds to believe the defendant committed the offense;
State v. Edmondson,
Okl.Cr.,
The second аssignment of error is that defendant was denied his right to a speedy trial. In
Barker v. Wingo,
In addition, we find no indication of prejudice to the defendant, although he complains that because of the delay, the State was able to pressure Lott into testifying against him. We do not believe that the fact that a delay may have allowed the prosecutor to make a better use of Lott’s testimony is the sort of “prеjudice” envisioned by the Supreme Court in Barker. It is true that the defendant was not released pending trial because he was unable to post bond, and the Supreme Court stated in Barker that when a person remains incarcerated, the law makes an on-going demand for trial for him. But when all the factors are weighed against each other, we find dеfendant was not deprived of his right to a speedy trial. Thus, the second assignment of error is without merit.
Defendant’s third assignment of error is that Lott’s testimony should not have been admitted because he was an accomplice and there was insufficient corroboration. To the contrary, evidence was presented by the State which — indеpendent of Lott’s testimony — connected the defendant to the crime. First, Davidson was shot with a .25 caliber weapon and the defendant was arrested with a box of .25 сaliber ammunition. Second, defendant was seen with Lott at 3:00 a. m. in the car which was later discovered at the scene of the crime. Further, the defendant was seen bеtween 2:00 a. m. and 3:00 a. m. carrying Lott’s pistol which witness Carrón Kay Hendrix saw Lott give to the defendant at her home. This pistol was later proved to be the murder weapon. Defendant was also seen with Lott at about 6:00 a. m., driving a different car. This supported Lott’s testimony that they had taken the railway truck because Lott’s car was out of gas, and that they had later abandoned the pickup and borrowed a car from defendant’s cousin.
By the weight of authority, if an accomplice’s testimony is corroborated by independent evidence, including circumstantial evidence tending to connect the defendant with the commission of the crime, it is sufficient to be admissible.
Brown v. State,
Okl.Cr.,
It is asserted in the fourth assignment of error that the trial court erred in
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admitting photograрhs of the victim taken shortly after death. Defendant claims they were used to inflame the passions of the jury. We observe that defendant has precluded us from considеring this issue by his failure to insure that the photographs were included in the record. Without them, we are unable to determine whether their admission was error.
Anderson v. State,
Okl.Cr.,
The fifth assignment of error is that the trial court refused defendant’s requested instruction on circumstantial evidence. The rule is well-settled that only when the State’s case is entirely circumstantial is an instruction on circumstantial evidence mandatory, and, as we held in
Howard v. State,
Okl.Cr.,
In the present case, the State relied primarily on direct evidеnce — Lott’s testimony — which established the elements of the crime, and only partially on circumstantial evidence. Applying the above rule, we hold the trial court did nоt err in refusing to give the requested instruction.
In his sixth assignment of error, defendant maintains the jury was prejudiced by the prosecutor’s remarks which caused the jury to make a finding of guilt bаsed on sympathy. We observe that neither the opening nor the closing arguments are in the transcript, and defendant has not supplemented the record on aрpeal with any affidavit or other pleadings specifying the prejudicial comments. Compare
Russell v. State,
Okl.Cr.,
Finally, defendant argues his conviction should be reversed because of an accumulation of errors, none of which justify reversal in themselves. Sincе we have found no error, there can be no accumulation of error.
Brinlee v. State,
Okl.Cr.,
In addition to the brief submitted by defendant’s attorney, defendant filed a pro se brief. The only assignment of error in that brief, not previously disposed of by this opinion, is the allegation that Lott’s testimony was perjured. Specifically, defendant alleges that Lott lied about a deal he had made with the prosecutor, and that the prosecutor allowed the lie to go uncorrected. A reading of the transcript reflects, hоwever, that the prosecutor did in fact correct Lott on redirect examination. During cross-examination, the following exchange occurred:
“Q. Now what kind of deal have you made with the District Attorney’s Office?
“A. I have not made no deal.”
But on redirect, the prosecutor brought out the following:
“Q. (By Mr. Pierce) Now how many times have I gone up and talked to you, please, sir?
“A. Once.
“Q. What did I tell you?
“A. You told me that you would ask for a — recommend a letter to the Governor, or something.
“Q. If you did what?
“A. If I testified.”
Since the terms of the deal were put before the jury, we find this assignment of error to be without merit. Compare
Runnels v. State,
Okl.Cr.,
From an examination of the record, it is our opinion that defendant received a fair and impartial trial and that no substantial right was prejudiced. We therefore hold that the judgment and sentence from which defendant appeals should, and the same is, hereby, AFFIRMED.