*1 оther to therein from other referred cases require as a condition which
jurisdictions Appellant, CALLINS, Charles liability for a defective imposition of when it was product defective that it was Appellee. Oklahoma, The STATE of pos- manufacturer’s from the transferred No. A-16771. Syllabus 5 of Paragraph session. Appeals Court of Criminal of Oklahoma. Court, Battery Company v. Marathon Sept. 6, 1972. Kilpatrick, supra. formally point Although the is not plaintiffs that
raised the brief Stand it must
ard contract violated its furnace adequately to test the
have failed on, are of it was turned we
before not be that such a conclusion would
view There the circumstances.
warranted under proof no installation
was completed on November
furnace been prior and fire),
4th (or date to requested therefore Standard “as
start test furnace. We cannot and plaintiff tested
sume” with that Standard should
the furnace or even that latter No
have tested the furnace on after language 4th in
vember view the obligation to
contract that such start in
test the furnace would arise after complete. If it unit wаs
stallation date, complete was the
plaintiffs’ obligation to so inform Stand Thompson, plaintiff,
ard. was in Mr. position
charge akin to job general
that of a contractor. regard has been with
What said prevail plaintiffs reasons cannot
against the manufacturer Trane and the equal apply
seller force to Standard liability
exclude the “installer” Climate of plaintiffs and the court not err trial did sustaining at Climate’s demurrer plaintiffs’
close of evidence. error, no being
There
affirmed.
BERRY, JACKSON, C. IRWIN J., BARNES, JJ., concur.
WILLIAMS, HODGES, McINERNEY BACON, JJ., dissent.
DAVISON, dis- J.,C. certified his V. BACON, qualification KENNETH J.. place. appointed serve in his
1334 Appellant
and
then let her out.
would
Street, passing
drove east on Third
Wash-
Park,
rеaching
ington
finally
Coltrane
Road,
recognized by a
which the victim
Appellant
sign.
road
on Coltrane a
drove
distance,
short
then turned off into some-
lease, “just
thing
an oil
like
kind
woody,” crossing
Appellant
guard.
a cattle
automobile,
pulled
out of her
victim
told her
off all
take
her clothes. She
refused, whereupon appellant
her
removed
throat, ap-
clothes. With
her
knife at
pellant
laid
then
her on the hood of the
car,
shirt,
covered her face with his
act
committed an
of sexual
intercourse
upon
He then
her.
drove off
the vic-
“Well,
sаying:
tim’s car
if
tell
Anderson,
Defender,
Don
Public
Okla-
cops
you”
.
.
.
I’ll
I’ll
come and
kill
County,
homa
appellant.
for
dressed,
walking
(Tr. 62). She
started
Larry
Gen.,
Derryberry, Atty.
Yvonne
highway
picked up
down the
when she was
Sparger,
Atty. Gen.,
Asst.
appellee.
for
by a
her to a fill-
passer-by,
male
who took
ing
police.
station
called the
When
OPINION
arrived,
the officers
she directed them to
assault,
they
the scene of the
took her
then
SIMMS, Judge:
police
hospital.
to the
a
She attended
Appellant was
convicted
the District
line-up
pointed
out
as the
.defendant
County,
Court
Oklahoma,
of Oklahoma
raped
later
who
her.
she
When
of Rape
crime
Degree,
in the First
back,
painted
got
yel-
her car
had been
After Former
of Felony,
Conviction
a
in a
low.
two-stage proceeding, and sentenced to the
Lippe,
City
Officer
of the Oklahoma
term of One Thousand Five Hundred
Police Department,
Sep-
testified
(1500) Years in
penitentiary,
the state
tember
he
19th
answered
call from
accordance with
verdict. From
filling
victim,
station and talked to the
who
ap-
took him to the scene of the
He then
assault.
pellant
perfected
has
timely appeal
took her
hospital.
He obtained the
this Court.
tag
automobile, YB-3264,
number
her
trial,
At
the alleged
rape
victim of the
report
and a stolen car
was issued.
testified she was 19
of age.
Sep-
On
19, 1970,
tember
she
III,
left home for
Prescott,
work
William Robert
testified
A.M.,
about 6:15
driving a
adjustоr
1969
that he
model
was an insurance
and in
light
Mustang
blue
vinyl October, 1970,
a dark blue
learned that
the victim’s
top.
parked
She
at Third and Broadway
impounded
automobile was
at Northwest
City
Oklahoma
A.M.,
about 7:45
and as
inspected
Wrecker Service. He
the auto-
she was getting
automobile,
out оf her
was mobile
damage
and found State’s Ex-
approached by a man
she
whom
identified
hibit’s numbered
on the
in court as the
pro-
defendant. The man
floorboard of the automobile. State’s Ex-
duced a knife with
a five
six inch blade
hibit
High-
Number 1 was an Oklahoma
and ordered her
car,
back
into
threat-
Patrol citation issued
ato Melvin R.
ening to cut her head off if
Cizek,
she did
improper
stopping
roadway
on a
obey. He told her
him her car
of a
bearing
Ford 2-dr.
li-
Oklahoma
keys,
persons
two
him,
were chasing
cense YB-3264. State’s Exhibit Number
wanted
get
he
to his side of town
is a photogrаph. State’s Exhibit Number 3
law,
cleaning
protection
dry
equal
es- defendant
receipt
issued
an encroachment
and was not
to a Charles Callins. State’s
tablishment
authority
in-
executive
of the state.
4 is a wrecker service
Number
Exhibit
Mustang bear-
voice,
reflecting that
Appellant’s fifth assertion of error
pulled in
YB-3264
tag number
ing
complains
prejudicial
inflammatory ar
1-35
on Interstate-35.
a location
from
*3
gument
pros
part
to the
on the
Highway
the
where
the location
Oklahoma
ecuting attorney. An examination
the
of
the citation. Witness
issued
Patrolman
arguments
prosecuting attorney,
final
of
as
de-
were
the exhibits
testified
Prescott
transcript,
in
trial
contained
the
reflects
ob-
when he
police. That
to the
livered
objection
by
that no
made
defense
automobile,
body
paint-
the
the
served
any portion
closing argu
the
counsel
of
and automobile
tag number
yellow. The
ed
attorney.
made by
ment
the district
The
victim.
number checked
serial
law
rule of
is well settled in Oklahoma
High-
Trooper
of the Oklahoma
only
must
Johnson
accused’s counsel
not
3,
Patrol,
on October
testified that
improper
object to
statеments of the dis
Interstate-35,
1970,
patroling
he was
attorney
closing argument,
trict
in his
citation,
North,
issue
and had occasion to
he must
the trial court to exclude
move
1,
stopping on
improper
Exhibit
State’s
and instruct
such remarks from
li-
had a driver’s
roadway
one who
any purpose,
not to
thеm
consider them for
Melvin
bearing the name of
Cizek.
cense
unless
are of such character that
remarks
as
in court
He identified defendant
error would
be cured
withdrawal
not
produced
driver’s license.
the Cizek
who
State,
thereof. Daves v.
77 Okl.Cr.
and the car
car license was YB-3264
The
objectionable
141 P.2d
An
statement
603.
vinyl
Mustang,
top
dark
over
made
was not called to
prosecution
body.
yellow
court, is not a
the attention of the
matter
presented
that could
time
be
first
Hooten,
City
of
Oklahoma
Officer
petition
in
in
in a motion for new trial and
Department,
that he inves-
testified
Police
upon appeal.
v.
and briefs
Robison
error
charges
of
tigated
case
caused
State, Okl.Cr.,
usual, in its constitutional sense. dissenting deprive part. that such a sentence does not BUSSEY, J., concurring. specially P. person “Whenever is declared by imprisonment
ishable for a crime for a less term not than BRETT, Judge (concurs part, any specified years, number of and no part): dissents in imprison- limit to the duration such concur this case declared, ment is the court authorized to affirmed, agree should be cannot but I pronounce judgment upon such convic- un- sentence should be left may, discretion, tion in its sentence such patent- disturbed. I believe the sentеnce is imprisonment offender to during his nat- ly excessive. life, ural any number less than such prescribed.” as are See: State, Phillips While Fields & su- v. Phillips supra, Fields & (Em- pra, merely modify recited that would phasis in original.) imprisonment, the sentence to life it was *4 section, approved 1,000 However, as interpret assumed that I that I the the phrase “during life,” sentence in that case. his natural Consequently, I am sets the compelled in limit punishment. this maximum for If that specifically case to state is correct, relevancy duty that do it not the then becomes the of this I see of affirm- ing 1,000 apply a years, sentence or Court to the law with reason. of either one some 1,500 true, years. notwithstanding of This is my I feel statement certain that this State, modify Okl.Cr., in Court would Seibert a which v. 457 P.2d jury sentence recited, imposed “Consequently, life wherein I sentences on a three convicted person offensе, applying analysis for such to the facts of the proba- and would consideration, bly case punishment recite that under such a the sentence exceeds the punishment years] limits of 150 is so not excessive as to legislature. set the [of time, At shock the sense of Knowing the same it mаnkind.” generally recog- is now, many modify nized that what I know people not I would that live more than imprisonment. a years; hundred sentence to life but And nonetheless in the in- stant case I concede further in- this Court that the facts the approving sen- is a any- of stant are tence more than case so heinous as to cause fifteen life sentences ordinary one of single the sensibilities to feel that offense. The decision states, this the Phillips, supra, “However, Fields & offender should be taken off practicalities permanently; notwithstanding, the streets of compеl life us to ob- duty 1,000 is, appellate apply it is the to serve a sentence courts years reason, the law guided all intent not be purposes, to a sentence.” life by emotions, Also, (Emphasis jury the added.) was. being practi- Such the inso-. cality life, apparent bodily far as no this harm done Court act within should to the complaining its wisdom witness in instant and cause to re- sentence 1,500 year flect I doubt that sentence imprisonment.” “life a Whatever message imposed would been a was that have on “white attempting man,” convey, to under identical circumstances. purpose served its when press story. released the If message I also that Haskins United concede was that there authority should sen- States, 1970), re- F.2d 836 Cir. (10th imprisonment tence one pos- to life without elementary ordinarily is a cites: “[I]t sibility parole, then it should be made appeal sеntence will be disturbed directly to the Legislature, State and not to pun- cruel and unusual nor considered as this Court. It authority within the statutory limits.” if it is within ishment legislature punish- to establish limits of authority in However, fail find ment, not this Court. which authorizes Oklahoma Statutes life im-
Approval in excess of of this sentence sеems to be predicated position provisions prisonment, notwithstanding of 21 O.S. my colleagues. as follows: § error, ion, patently it is excessive and violates fifth assertion Defendant’s prejudicial in- Oklahoma Constitution Statutes. complains of he which impris- modify denied would this sentence tо life argument jury, flammatory As I onment. were made. objections because no stage in the second arguments
view those fundamentally they were so proceedings, Presiding BUSSEY, Judge (specially necessary. objection was that no erroneous : concurring) quali- been that the Considering Judge the view of I am in accord with “Rape penalty; and that the death fied for 1,500 year imposition that the of a Simms punishable death degree is first constitutional does not violate the penitentiary, not in the imprisonment prohibition against cruel and unusual prosecutor years,” (5) less thаn five imposition of such ishment and that the permitted subtly comment on the Judge not excessive. Simms sentence is Board Parole of the Pardon and actions light crystal clear that makes it live said, “This man should when he Rules, Pardon and Parole Board filed with if don’t rest of his natural life purpose оf Secretary of penitentiary. him death in the state parole, sen- considering appellant for may says It law there is no maximum. as a life sentence. imposed tence is treated keep in there him take million he And later long, don’t know.” pos- that “there is no Judge Brett asserts *5 sаid, fifteen hundred “And if it takes satisfied, way to be sible for the sentence penalty we want this that is what do death his em- unless defendant’s 3 So, jury returned him.” placed upon the cell bunk body balmed 1,500 peniten- assessing its verdict 1,500 There years.” balance of the tiary sentence. persons many in which sen- аre instances prior tenced have died permit my opinion, courts In when trial imposed, and I completing the sentence accept of excessive verdicts am not instance in which aware of ishment, as the in the instant kept prison cell body was embalmed supra, Phillips in Fiеlds & imposed until was satisfied. and, the sentence jury system; mockery makes specious the asser- argument This is as step in abolition it constitutes the first 1,500 year would not tion that a sentence further, ap- system; when of the imposed on a “white man.” have been approve such ridiculous ver- рellate courts There is not one scintilla evidence only mockery and they magnify dicts support this conclusion. the record to It travesty justice. perpetuate Judge concedes that Even Brett’s dissent remembered, just society is not should be off appellant should be “takеn citizens, judged by how it treats its best permanently.” streets instead, citizens. it treats its worst how possible the instant case there is no In jury, like in the believe the this Court satisfied, unless constituted, past presently was col- and as body death his embalmed upon defendant’s this had been offense or-blind. Whether for the bal- placed upon the cell bunk man, man, by a white committed black 1,500 years. ance brothers, my Indian by one no Therefore, imposed, would have agree that this con- same while I opinion affirmed, concurring in the respectfully hesitation viction should be sentence, opin- my Judge Simms. dissent to the because 3.Ibid, O.S.1970, 132. 1. 21 1115. § Transcript Evidence, page 2. 131.