*1 694
ry opinion punishment imposed in a is not booth. Officer Cochran observed that the something Perry defendant hand excessive. in his right pocket. front As proposition defendant’s third bar, Perry the defendant and left the erred of error asserts that the trial court packet officers followed and received refusing in instruct on circumstantial Perry from and arrested the defendant. have reviewed the evidence. We Police Officer David Mercer and Police is record in the instant and it our case Lovett, employed by Officer Bennie both opinion that the case was not based State’s Department, tes- Police entirely circumstantial evidence. This on substantially tified to same facts Turvey Court in the case of that of Officer Cochran. in Okl.Cr. held Jerry Legg,
Police Officer the Okla- Department, homa Police next testi- only “It is is when the state’s case en fied in regard custody to the chain of tirely circumstantial that the court is re packet. quired gi'7e an on circum instruction Wayne stantial Ronald Clodfelter testified evidence.” employed by he was the Oklahoma State It is judg- therefore our of Investigation Bureau as a chemist and ment and sentence should performed a number of tests on the be, hereby, and the same is affirmed. packet given by contents of the him Offi- cer Jerry Legg. BRETT, Clodfelter’s J., and J., P. concur. the substance was cocaine.
The defendant did not take the stand nor
offer behalf.
error asserts that the is verdict not sus
tained sufficient This evidence. Court
has consistently held that it is the exclu sive weigh the evi PAYNE, facts, dence and determine the and where the verdict is based reviewing court will not interfere with No. M-73-323. State, Okl.Cr., verdict. See Jackson Appeals of Oklahoma. The defendant’s second
of error punishment asserts that the is ex This repeatedly
cessive. Court has held question
numerous decisions that the ex-
cessiveness of must be deter study
mined of all the facts and cir particular case,
cumstances each power Court does not have the
modify a sentence unless we can conscien
tiously say that in all the facts and circum
stances the is sentence so excessive as to
shock the conscience the Court. See
Johnson (1963). In the say cannot case we imposed
the sentence shocks the conscience are Court. We therefore of the *2 Anadarko, Hefley,
Justus Gen., Larry Derryberry, Atty. Michael Jackson, OPINION BUSSEY, Judge: Payne, hereinafter re- defendant, ferred charged, tried Court, and convicted in the District Caddo CRM-72-877, County, Case No. for the of- of Beverage fense Sale of Alcoholic with- out a License. His was fixed at a thirty (30) days imprisonment term of County and a fine of Caddo Jail ($500). From said sentence, timely appeal has judgment and a perfected been Court.
Briefly stated the facts are as follows: 29, 1972, Agents On December ABC E. J. Corbin and Farrow were Caddo Sims Oklahoma, County, purpose of in- for the vestigating violations of laws. approximately At 9:50 a. m. drove to place (Payne’s the defendant’s of business Grocery Station) located four miles Oklahoma, Binger, High- west of on State arrival, way Upon Agent got Farrow Agent out the automobile while Corbin remained in the Farrow had automobile. conversation with the defendant and went to the back where he store pint whiskey for chased a half $2 The defendant first of- defendant. probable pint “Kentucky fered rant shows sufficient cause on its Farrow a half Tavern” and Farrow refused this face the issuance a search when brand, the defendant offered him half then it is for the pint “Seagram’s sup' to take oral Seven” However, chased. later obtained the affidavit. Farrow and, company personnel sufficient to show affidavit is not *3 Office, from the went cause and the does take oral Caddo Sheriff’s testimony testimony, back to the store where the then oral must be defendant’s the the defendant. The recorded as set out warrant was served on and transcribed § 1224.1, sup- premises supra, it can be search the resulted sei- before used to large zure of alcoholic the affidavit. In the amount bever- insufficient case, ages. we have reviewed support the affidavit in of the search war- defense, For the the defendant testified rant and its face find it shows on suffi- any whiskey Agent that did to he not sell cient cause the issuance of a Farrow, him; gave but to that often it State, search Leonard warrant. See gave whiskey patrons during the to Christ- Therefore, Okl.Cr, season; mas have, that he not nor had did testimony sup- oral not was to had, any “Kentucky he ever Tavern” brand port the affidavit in the instant case but store; and, whiskey in his that he made testimony surplusage was mere and the frequent trips to taken did not to be recorded need and chase his store and these commodities for transcribed. trips purchase whiskey he would for other people request. at their The The defendant defendant’s second as- stipulated to not serts admitting the fact that he did that the trial erred in possess a valid evidence of other license. offenses. county Several residents of the testified The defendant’s contention under this that had asked the defendant to proposition is that seized as a chase whiskey for them Oklahoma result of the (several search warrant cases whiskey and the that the defendant had as liquor) was inadmissible it tended to confiscated; purchased has been connect the defendant with commission
whiskey was in the de- possession support another prop- crime. In of this fendant as a their result of order. osition, the cites defendant the case of State, Okl.Cr, Hawkins v. asserts (1966) which holds that unlawfully the search warrant was is- argument sued. His is based on the fact “Evidence of other crimes order to be support that oral taken was admissible must within come one the issuance of the search but well-recognized exceptions to the rule. not support transcribed and filed. Motive, That it (1) tends to establish argument, defendant relies on 22 Intent, (2) The absence (3) of mistake O.S.1971, 1224.1,which states: § accident, or A common (4) scheme or issuing “Before plan embracing the commission two judge may take oral sworn to or more so related to each crimes other oath, under supplemental to affida- proof that of one tends to establish the Provided, however, vits. that such oral other, and, identity person of a (5) recorded, testimony shall be such record charged with commission of the forthwith, transcribed and filed with the crime on trial.” the search support affidavits war- It is our that the com rant.” plained properly of evidence was admitted intent, It long is our that so for two to show (1) as reasons: being exception rule; and, an affidavit in an search war- above Tempy part gestae. res See (2) P. 383 9 Okl.Cr. LEE, Lonnie and Swarb cases cited therein. proposi- The defendant’s third final No. C-73-364. Attorney
tion asserts Appeals of Oklahoma. prejudicial closing argu- remarks during ment to following reveals The record Attorney
closing argument by District jury:
to the you man
“I to find this submit *4 you’re
guilty going to have to call Mr. liar, . . some-
Farrow a a trickster . your day
one that’s wasted entire
you’re going have to call me the same putting this
thing because I’ve been here you. He .
case on before called my law officer
Mr. Farrow becomes
when he takes the stand and swears
my prosecuting I’m the at-
torney and I don’t liars on the (Tr. 197)
stand.” improper argument believe this was
We invades
However, after careful review evi-
dence, we do not believe that the defendant prejudiced require
was so as to reversal. competent
There was evidence in the jury
record for the to base their verdict on
and the trial court admonished the
to consider the remarks the Dis- Therefore, Attorney.
trict reason of Attorney’s improper remarks jury during closing argument, we judgment
believe the and sentence
from should be from a term modified
thirty days imprisonment and a fine a term ($500)
thirty days imprisonment and a fine fifty two hundred and dollars ($250).
Affirmed as modified. J.,P. concurs.
BRETT, J., specially concurs. Green, Duncan, R. John BRETT, Judge (specially concurring): Atty. Gen., Derryberry, L. James I modify Swartz, would sentence to a fine only.