*1 366 7, 4, Vehicle, Exhibit Nos. 5 were John After Former Conviction aof Felo- Brown, Johnny
Hubert Hubert Brown and ny (10) years. is ten Brown, John H. respectively. The Insofar as the sentence was contrary to convictions reflected in State’s Exhibits law, this Court will Modify the sentence to Nos. 4 5 Muskogee County and were in (10) ten years and for the above and forego- County. the other in Sequoyah ing reasons the and sentence of Frazier, Okl.Cr., v. AFFIRMED, trial court is In State as MODI- (1977), FIED. identity 656 we ruled that of the
name of the defendant of the
person previously BRETT, JJ., convicted is sufficient as CORNISH and concur. prima identity facie evidence of of person negate
unless the name is so common as to prima facie identification. In in stant John Hubert Brown is not suffi ciently common to negation. warrant
Although in case the names of judgments two of the and sentences bore DOYLE, David Appellant, Lee dissimilarities, minor certain we need not v. reach a determination of whether of Oklahoma, those dissimilarities were sufficient to ne The STATE of Appellee. gate prima their facie view identification in No. F-77-688. fact name on the other Court of Appeals Criminal of Oklahoma. judgment and bore no sentence dissimilari Only prior felony one ty. conviction is nec April essary support a conviction of “After Former Felony” Conviction violation O.S.Supp.1976, 21 51 as construed § in Thigpen
this Court 571 (1977). Accordingly 467 P.2d the defend assignment ant’s second error is found to be without merit. error, assignment
As final asserts the sentence of twenty-five (25) years is We excessive. is
agree that sentence excessive —as a law. matter of Although charged the defendant was of Larceny this case the offense of a Vehicle, Motor After Former Conviction of Felony, was convicted lesser included offense of Unauthorized of a Use Vehicle,
Motor After Former Conviction penalty Felony. The maximum for Unau- thorized Use of a Motor Vehicle five O.S.1971, years. Title 47 17-102. § Thigpen, ruled supra, O.S.Supp. we 1977, 51(B) to be unconstitutional. There- § fore, now, under it Section stands penalty the
maximum defendant could have for Unauthorized of a received Use Motor *2 Wadsack, Norman,
Charles E. appel- for lant.
Larry Gen., Derryberry, Atty. Robert L. McDonald, Gen., Atty. Asst. Jerry Earl Benson, Intern, Legal appellee.
OPINION
BUSSEY, Presiding Judge: Appellant, Doyle, David Lee hereinafter defendant, charged, referred to as was tried and in Court, convicted the District Cleve- CRF-77-49, land County, Case No. for the Kidnapping offense of Money to Extort O.S.1971, violation of 21 punish- His § (10) years’ ment was fixed at imprison- ten and ment from said and sentence timely appeal perfected a has been Court.
At the trial J. N. testified that on the evening February 7, she a attended Norman, movie at the Boomer Theatre in at approxi- Oklahoma. left the theatre She mately m. p. 11:00 and walked toward her parked was A car which across street. man, J. N. whom identified court as defendant, up holding came her behind keys. her car He then knife and demanded get the car. The de- ordered her into car, the witness into fendant followed door, directed her to lock the and drove the through car Norman south on Interstate 35. old and He asked her how she was whether any money. eighty-six had had she She billfold, she dropped dollars in her which stopped at behind the seat. at Falls or- a scenic turnoff Turner and get dered J. N. to into the back seat and to got clothing. remove her He then into raped Again her her. back seat with and her he questioned money; he about car and her billfold searched the found the back seat. defendant drove Dallas, Texas, in the stopped parking and Inn He told J. N. if lot of Ramada Motel. police call the he would re- she would not thirty- money. gave He her turn half her disap- car dollars, out got six N., peared into the shadows. The witness informed her he had a knife and direct- reported drove to a bus nearby get station ed her to into the car. He said that his police the incident to a officer. original only car, intention was to take her but that he was afraid she notify would Sergeant H. he Graham Pierce testified police would not make it out of employed police was officer with the *3 town. money He asked her for because he Dallas, Texas, Department; Police and that knew that he enough did not have gas to 1977, 8, February approximately on at 4:00 get Corpus to Christi. He money found the m., p. N. J. contacted him at the bus station. in the back seat of the put car and it in his telling While she was him about the inci- coveralls. But they when to got Dallas he dent, station, the defendant entered the bus sorry became for her. He thirty- returned at pointed and J. N. him. Officer Pierce seven parking dollars and her car in the lot identified Exhibit 1-B as the knife of the Ramada Inn. he from the defendant. took Gibson, Johnny Officer E. also of the defendant asserts in his first Texas, assignment of Dallas, error that Department, Police testified the trial court erred in admitting that he took the defendant “downtown” evidence of another from the bus He crime. He station. identified State’s contends that the evidence of 1-D twenty-dollar rape Exhibits 1—C bills the was and of such an inflammatory na he the prejudice which took from defendant’s left ture as to the jury, citing as au pocket. coat He also received the defend- thority State, Okl.Cr., Hawkins v. Pierce, ant’s knife from and Officer marked (1966), wherein this Court recognized it for identification. the well-established rule concerning other crimes: Price, Hartley Property Officer the Cus- “ . . that when Depart- put a defendant tody of the Norman Police is Officer upon offense, ment, trial for custody to chain one he then testified the of is to be convicted, 1, all, if envelope containing of an at State’s Exhibit evidence which twenty-dollar guilty the knife and shows he is two bills. of that offense alone and the admission evidence of other Harmon, L. Nor- Sergeant Robert the crimes, subsequent or the to Department, man testified that he Police for offense which he is on trial is inad- Dallas, Texas, the police went to station in missible.” 10, 1977, February on that he and there questioned kidnap- the defendant about the Although general rule is a correct robbery rape ping, and of J. N. He advised law, statement of the this Court has hereto- rights, the defendant of Miranda recognized fore certain limited exceptions. acknowledged the defendant that he under- We are opinion of the that the evidence of Although stood them. he first denied rape the exception falls within an the incident, anything about knowing the the general being rule as part of the res gave defendant later written statement in gestae. The defendant charged was kidnapping which he admitted J. N. The the offense of Kidnapping Money. to Extort present 11, February officer was also on The evidence J. established that N. told the gave when the defendant another defendant that she did not any money have Agent Patty Vaught written statement to and hid her billfold behind the seat of the Investiga- Bureau of Oklahoma State vehicle, and that the defendant did not find brought envelope containing tion. the He the money rape, until after the while he twenty-dollar the from knife and the bills was in the back seat with N. evi- J. Department. Dallas to the Norman Police dence of the rape was thus so interwoven with the kidnapping
The defendant testified that on the eve-
nature
as to
7, 1977,
ning
February
part
integral
he wanted to
form a
of an
transaction.
Evangelistic Enterpris-
dealing
return to the Roloff
with a
assignment
similar
of error
Christi, Texas,
Corpus
es in
Kupiec
which he had
complaining witness. However with refer- relating ence to the testimony rape, insofar as this Court treated that offense as
being part gestae, of the res I believe a
subsequent trial for that offense should be precluded by jeopardy. former Thompson BANKS,
George a/k/a Lateef
Balogun, III, Appellant, Oklahoma, Appellee. The STATE of No. F-77-727. *5 Appeals Court Criminal of Oklahoma.
April