Chase v. State
509 P.2d 171
Okla. Crim. App.
1973
Check Treatment

*1 sup- would have the evidence serve that Shooting for With

ported a conviction chose to jury Kill wherein

Intent the lesser of- guilty of

find Weap- Dangerous

fense of Assault With circumstances, we are of such

on. Under years of two the sentence

imprisonment is not excessive. is, accord- judgment and sentence

ingly, affirmed.

BLISS, BRETT, J., concur. J., P. Appellant, CHASE,

Frank Oklahoma, A-16768. Criminal

Court

April 11, 1973.

Rehearing Denied appel- Dalton, Jr., T.

Andrew lant. Gen., Paul Atty.

Larry Derryberry, Gen., Crowe, Atty. appellee. Asst. OPINION Assigned): BAILEY, Judge (Specially re- Chase, hereinafter Appellant, Frank tried, defendant, charged, was to as ferred Tul- Court of District and convicted No. CRF-70- Case County, sa Fire- Carrying a the offense Felony. arm, Conviction (10) ten fixed at His judg- said and from imprisonment, years *2 sentence, timely appeal ment a and has The State next Larry called Johnson. perfected been to Court. He testified proceeded that he to the home of Frank 29, 1970, Chase on for the At the Leland tes- June James Johnston purpose of arresting Frank Chase on in- employed tified that he was Deputy as a formation received from a reliable infor- 26, Muskogee County. Sheriff of On June mant. He arrived at the house and an- 1970, driving he was highway, down the himself, nounced but received no answer. just Warner, Oklahoma, north of when he He then entered through the house the met a car on wrong the side of the road. door which was partially open and found passed, made a u-turn and After the car he present. no one He testified that he ob- proceeded light the car with his red after served a red-like material on the floor and car, stopping on. After the the defendant found a piece broken pistol grip near a got Deputy back to out and walked the wall. He identified State’s Exhibit No. Thereafter, car. the defendant Sheriff’s picture as a of the house and identified persons passen- and three other who were State’s Exhibit portion 6 as the of the vehicle, overpow- gers in the defendant’s pistol found in the house. ered him gun. and took his The defendant did not stand, take the The defendant and one Stewart then nor any evidence in his behalf. forced him his car (Deputy Johnston) into op- and him forced to drive. Stewart rode Defendant contends under his first posite him in the front seat and the de- proposition that the trial court erred in fendant rode in the back seat of the car. failing to his dismiss, sustain motion to be The defendant held the caliber .38 revolv- cause this part offense was alleged one er, Johnston, belonging Deputy his act, transaction or omission. head and ordered him to start driving to argues Defendant that as he was tried Upon arriving they Tulsa. went and convicted in Muskogee County the Deputy to a house. identified Johnston offense of Kidnapping Extortion, being picture State’s Exhibit No. 1 as a of which arose out of the same incident as the that house. He then testified inside of the instant he has placed twice been inside this house he was kicked and beaten jeopardy for the same crime. doWe 4 as a Exhibit No. and identified State’s not agree. We are of the picture the house and the of the interior of crime of Carrying Firearm, a After Form- picture like blood he stain in the “looked er Conviction of a Felony and the crime of lost he when was beaten.” Kidnapping for separate Extortion are two proof and required distinct crimes.

Thereafter, he was taken to second Extortion, Kidnapping convict for house, Upon arriving house. at the second proof required Carry- for conviction of he was taken to a railroad track. At this ing Firearm, time, Conviction of placed pistol be- the defendant Felony State, is dissimilar. See Grubb v. deputy’s eyes tween and told him to Okl.Cr., 497 P.2d 1305 (1972). again sodomy. commit oral He kicked and beaten in the face. Defendant next contends that The defendant then left and Stewart erred in admitting State’s Ex deputy’s took the He was then wallet. tak- 1, 2, 3, 4, 6, 8, hibit Nos. for the en Osage County Deputy and freed. reason that the products same were of an then identified State’s Exhibit unlawful and unconstitutional search and Johnston No. 5 as an piece item which looked like a seizure. The record reveals that Officer gun his handle identified Johnson, State’s Larry officers, and other went to Exhibit No. 7 as a billfold with the de- the defendant’s house to arrest the defend fendant’s identification in it which was They ant. had received information from found in his car. a reliable informant that a felony had been years imprisonment, five (5) to believe and as modi- they had reason committed fied, felony. and sentence is af- had committed necessary to firmed. it discuss do not deem as the evidence was legality of the search BUSSEY, J., concurs. necessary not merely cumulative and was of the defendant for the conviction BRETT, J., dissents. *3 uncontradicted an abundance of there was bearing guilt. the defendant’s evidence on BRETT, Judge (dissenting). propositions remaining two Defendant’s respectfully I dissent to this decision. I together. De- be discussed of error will concerning believe defendant’s contentions erred fendant contends that the single course of conduct contains merit. allowing the to inter- continuously in State testimony The same evidence and was used harpoons evidentiary and evidence of ject already in this in trial that had been used other unrelated into the trial offenses Therefore, defendant’s I re- other trials. ap- is punishment excessive position my tain the stated in comments pears given under the influ- to have been State, supra, respectfully Grubb v. dis- passion prejudice. ence of sent. case, the trial court In the instant evidence of

allowed the State kidnapping, attempted oral sod

robbery, battery. In the case

omy, and assault and State, Okl.Cr., 481 P.2d 805

of Green v. approving in the lan this Court (1971), George HAYWOOD, Appellant, C. State, Okl.Cr., 321 guage Hattensty v. stated: (1958), 710 P.2d “ has been held that similar remarks ‘It No. A-17745. may grounds sufficient not constitute clear, is guilt reversal where evidence of Court of Criminal in connection with but will be considered April 13, Decided 1973. the contention that the As Corrected tending prejudice de- . excessive ” jury.’ fendant with the Green, supra, The court further stated page at the following:

P.2d practice has been the of this Court

“It ‘evidentiary involving

that in cases har- fairly

poons’ guilt hangs where close balance, grant new while guilt strongly

in cases is es- where

tablished and new trial would undoubt- conviction,

edly result in this Court will

reduce the sentence.” guilt

In the instant of the defend- very strongly

ant is established and a retri- would, doubt,

al without result case

in a conviction. are therefore of the

justice by modifying would best be served and sentence to a term of