*1 576 State, (Okl.Cr.1978); Here, appellant P.2d 377 repre-
v.
Sisk
excessive.
(Okl.Cr.1971);
State,
by
er attack on the
of defense counsel.
(Okl.
Cf
Black v.
imprisonment years imprison to ten ment.
IV. Finally, appellant asserts that his ($2,000.00) Two Thousand Dollar fine is *2 Holtzclaw, Center Oklahoma
Pamela Sue Norman, for Project, for Criminal Justice Gen., Turpén, Atty. drawn, Michael C. Tomilou that when the check there was Liddell, Gen., Gentry Atty. Asst. Sandra D. insufficient funds to cover it. Howard, Intern, Legal City, Oklahoma Cochrans have never received appellee. money good to make check nor have
their been cattle returned.
BUSSEY, Judge:
*3
appellant
The
first contends that
appellant,
Gore,
charged,
J.L.
was
fundamental error occurred when the trial
tried and convicted in the
of
District Court
hearsay testimony.
court admitted
Specifi
County for
of Obtaining
Atoka
the crime
cally,
argues
he
that the State’s first wit
by Bogus
and/or Merchandise
Cash
Checks
ness,
Cochran,
Orin
concerning
testified
in Case No. CRF-82-114 and was sen-
Pryor’s
Mr.
ef
nonverbal assertions to the
(5) years imprisonment,
tenced to five
and
question
fect that the
in
check
was not his.
appeals.
he
first note
Pryor’s
We
that Mr.
assertions
July
buyer,
On
cattle
who that the check was not his
hear
were not
Pryor,
identified himself as Dan
came to
say
Furthermore,
testimony.
even if this
purchase
the Atoka Livestock
to
Auction
testimony
hearsay,
opin
was
we are of the
Co.,
for
cattle
the J.L. Gore Cattle
awith
ion that these assertions are
as
admissible
signed
printed
check
and
name
with the
transaction,
part of
formerly
the entire
re
Gore,
J.L.
but the dollar amount left blank.
that,
gestae,
ferred to as res
in
without
Cochran,
manager
Mr.
the
the
of
livestock
might
these assertions the main fact
not be
barn, took the
and
ad-
check
obtained the
properly understood. See Dixon v.
phone
appellant.
dress and
number of
Mr.
(Okl.Cr.1977);
Beavers
Cochran’s
of
wife filled
the sale amount
J.L. stated that he to sent error, assignment In his second of purchase the cattle for him and stated that appellant argues the that er fundamental the check He was valid. told Mrs. Cochran ror occurred when the trial court allowed banker, Allen, that she could call his David testify Mr. and Mrs. Cochran to to the to, banker, if she wanted and she called the respective contents of their phone conver and he range stated that a check in the of appellant they sations with the could when $10,000-$15,000 be acceptable. would Sub- voice, personally identify not and sequently, appellant Mrs. Cochran called to State failed establish the number dialed him, back so Mr. Cochran could visit with assigned by the number phone was appellant Pryor and told him that Mr. was company to We find that buying the cattle for him he was because requirement of identification was clear going to Following another sale. ly met in the instant case since “... [T]he phone conversations, Pryor Mr. loaded the place call was made to a of and business cattle on a trailer departed. and the conversation related to rea business sonably telephone.” transacted over the trial, Allen, At David president vice and O.S.1981, 2901(B)(6)(b). Further See loan § officer Bank and First National more, the State introduced Cochran’s Sulphur, Trust in Oklahoma testified that telephone prove they to that call bill did appellant he was familiar with and that number, ap presented appellant’s introduced one of check to Atoka livestock auction presented pellant’s phone checks on his against was which number appellant’s account Also, imprinted, presented at the was and evidence that signature bank. the bank’s card was the number the Cochrans called was the admitted into evidence and Mr. signature appellant’s Allen testified that number that had bank listed card was signature ap- assignment the authorized him. This of error is that without peared on the He check. further testified merit. assignment your
Appellant’s response question, you third of er In to are you insufficient to advised that have ror is that evidence was been handed all you for the are sustain his conviction reason that instructions to receive in determining this case. Please never established that he ob read and the State re-read the instructions as a whole possession of the cattle. We first and tained upon your continue deliberations in an physical possession actual is observe that effort to reach a verdict necessary element of the crime of case. not a (Tr. 211-213). Obtaining and/or Merchandise Bo Cash gus O.S.Supp.1983, Checks. Title objected party response Neither to this part: provides pertinent 1541.1 judge they when asked if an had therefore, objection; who, assignment is Every person with intent to cheat (Okl. defraud, waived. Jetton v. attempt shall obtain or Cr.1981). Moreover, person, corpora- firm we find that his re- or obtain sponse not Day coercive. See any money, property tion or valuable *4 (Okl.Cr.1980). added). assign- This thing_ (Emphasis groundless. ment of error is Furthermore, present the State did testimo- judgment The and sentence is AF- loaded on a trailer ny that the cattle were FIRMED. away by Pryor Mr. who was and driven acting appellant. of behalf BRETT, P.J., concurs. Appellant argues also that the PARKS, J., specially concurring. intent prove any failed to fraudulent State has part of This Court PARKS, Judge, Specially Concurring: defraud and cheat held that while intent to Although majority’s I concur with offense, necessary of the it is is a element opinion must be af- conviction evidence, prove by to direct often difficult witness Cochran’s testimo- firmed because may by shown inference and therefore be separately ny hearsay, not I write to was the acts of the defendant. Ross v. from majori- express my disagreement with the (Okl.Cr.1984). State, P.2d 1065 687 testimony ty’s that “even if this assertion case, check, was In the instant which are ad- hearsay ... these assertions signed by appellant, was returned due to transaction, part the entire as of missible prima is facie evi insufficient funds and ” gestae.... formerly referred to as res appellant’s intent to defraud. dence of See See, supra, at 578. O.S.1981, Moreover, appellant 21 1541.4. § longer gestae a res or “entire There is no attempt has never made to make resti hearsay exception to the rule transaction” nor have the cattle been returned. tution Evidence Code. See under the Oklahoma light Viéwing this most evidence O.S.1981, the Evidence Sub- 12 2803. As State, opin are of the favorable to the we Note to Section 2803 states: committee’s proved the essential ele ion that State in these rules is the In no instance beyond of the crime a reasonable ments employed. The gestae” term “res Spuehler 709 P.2d doubt. v. imprecision in the term vagueness and assignment This is merit- un- gestae” and the circumstances ‘‘res less. employed be to ad- which it should der hearsay evi- inadmissible assignment ap of error mit otherwise As his final escape a convenient erred dence pellant contends that the trial court affords under condi- hearsay doctrine and jury, after it in its communication with appropriate than deadlock, much less informing not tions announced general employed under being agree might forced to be jury that it was not 803(24) Ac- these rules. exception argues He that the trial upon verdict. of of specifically cordingly, gestae” “res is jury into reach court’s actions coerced the excep- an in these rules as ing judge’s writ abandoned a unanimous verdict. hearsay rule in response in case stated that: tion to the ten favor of categories exceptions specific more of herein, (emphasis origi- recognized
nal) Note, Law: The Accord Criminal “Excit Exception ed Hearsay Utterance” to the Analysis Rule: An Federal Okla of Newbury Light homa Law in (1986). 39 Okla.L.Rev. 85 n. 16 More over, majority the cases cited are point.
not on 560 P.2d Dixon (Okl.Cr.1977), pre-Code opinion is a based gestae exception
on the res common law rule; and, hearsay Beavers v. (Okl.Cr.1985), in which this dissenting opinion, writer filed a relates to application of the excited utterance ex ception hearsay to the rule. *5 FIXICO, Appellant,
Antonio Oklahoma, Appellee. STATE of No. F-84-827. Appeals Court of Criminal of Oklahoma. March 1987.