*1 O.S.Supp. application This pa. (22 was referred to the O.S.L.1969, Ch. Referee, hearing Lerblance, Court Mr. Penn requires a 1969, 991b), which § findings be- his competent of conclusions of law as set submission herein, consideration, forth be revoked. after careful can suspended a fore have adopted at a expressly grants Court. statute counsel, pre- right to hearing witnesses evidence, and to confront sent presume to we do not
against him. While pa- applicable
imply that statute is of
roles, it indicate the intention does of fair for notions
Legislature provide conditional terminating in of
play matters freedom. Eugene ROBERSON, Jackie Plain- Error, tiff conclude therefore We should be parolee’s freedom conditional Oklahoma, of STATE Defend- parole safeguarded by provisions of ant in Error. occasion, statutes, of and or the needs No. A-14076. dinary principles justice and fairness. of Appeals Court of Criminal of Oklahoma. Thus, future, re parole in the before a Oct. 1967. parolee voked and recommitted for sentence, remainder he be ad of his should Rehearing On Feb. of revocation ground vised op sought" and afforded a reasonable portunity hearing for a on whether con parole
ditions were fact violated. parolee
This does not mean is en court,
titled to a trial with all the con procedures safeguards guar
stitutional if process.
anteed due It is sufficient parolee opportunity is extended the
explain away the accusation a violation parole conditions at an ad impartial hearing
ministrative of before an parole
ficer before issuance of an order mandatory
revocation. Nor is it that a
hearing parole always be held before
revoked, in certain circumstances clearly may
cases of a indicate the breach
parole condition, necessity without the of a
hearing. The rule announced in this deci prospective application.
sion is thorough
After a review record petitioner we instant find that right
was denied no due him the at time complete the penitentiary
was returned Therefore,
the remainder of his sentence.
petitioner is not entitled to relief under petition corpus. writ of habeas
Writ denied. *2 Tulsa, May, plaintiff in
Thomas H. error. *3 Gen., Blankenship, Atty.
G. T. Dale F. Crowder, Gen., Atty. for defendant Asst. in error.
BRETT, Judge: appeal Eugene is an Ro- Jackie berson, hereinafter referred to as defend- ant, from a in the district court conviction County, of Tulsa charge on a assault deadly weapon, a former convic- after felony. tion of tried to a Defendant was a jury, guilty, punishment found and his years penitentiary. fixed at state in the Defendant’s motion for a trial sets new pe- out 13 errors. He lists errors his error, argued tition in under are propositions three in his brief. briefly are: facts stated the defend- ant was in an accident involved automobile Tulsa, on March 1966 at city of North, of 46th intersection Street Cincinnati As the result of Avenue. accident, filed charges criminal were three against court. him and reached the district Defendant charged as follows: Case weapon; deadly No. with a assault firearm; 21914, carrying case No. 21915, possession burglary case No. tools, further, “after charge alleging each felony”. Subsequent- former conviction of ly, charge possession burglary tools was dismissed. accident, day of the Raw-
On the C. H. officer, linson, off-duty police Tulsa an operated laundry was at a he owned near the where the accident intersection occurred. He walked the scene of possible, and accident to render aid in- that discovered two automobiles were volved; persons and that had injured nearby taken into a Oil Com- Gulf pany service station until the ambulance arrived. defend-
Officer Rawlinson observed the curb, resting up ant’s car on the the de- himself to fied that he identified He testi- sitting in it. the defendant in- just the defendant was fendant when and raced defendant started fied that the rest-room, it; when he side the motor, move in an effort him, while door to face turned defendant and told the went over open 18 inches. About still about the accident. leave scene of time, Quinton, Jerry Deputy Sheriff error contention of Defendant’s first few min- officer, A plain-clothes arrived. allowing the that the erred in State court car, got defendant out utes later the P-38 into certain introduce Skelly towards the street walked across testimony con- pistol automatic and certain in- Station, at the same located Service same, objections cerning the over tersection, appeared did so he and as he clearly shown when it was holding belt. something under his Offi- pistol were ob- and said evidence that said *4 Quinton fol- Deputy cer Rawlinson and illegal an and search through tained arrest street, and as Raw- lowed him across the of the defendant. station, the linson entered suppress was the evidence A motion to de- approached As the the rest-room door. in preliminary hearing introduced at the the rest- about to to enter fendant was Pleas, was over- and Court of Common room, Deputy Quinton identified himself to Court, at defend- In the District ruled. defendant, him and advised suppress” was filed a “motion to ant’s accompany him inside the would have to particular P-38 auto- with reference to the no replied The defendant rest-room. pistol; and attached the motion matic to him; with one was in the rest-room going testimony at the transcript was a of taken door, attempted and to close the hut hearing. preliminary was sus- motion prevented in deputy by it his foot placing (possession of to case 21915 tained as No. way. Deputy Rawlinson and Officer to the burglary tools), but was denied as Quinton proceeded then to the door shove to charges. elected other two The State open, entering Rawlinson rest- with proceed in in which to trial No. case 21913 inside, room he went Rawlinson first. As crime of charged with the defendant was hand, right reached and defendant’s weapon, deadly after former assault with a doing pistol, de- grasped a which the so felony. conviction The trial commenced of point- fendant and which holding, 6, on June ed at in- Rawlinson’s stomach. About that carefully be- reviewing the record After snapped, stant pistol hammer but Court, opinion that we are of the fore caught right fore-finger Rawlinson’s error first contention of prevented firing. gun which from without merit. pistol After a brief struggle, was taken 10-102, provides: Title 47 Okl.St.Ann. § from the placed and he was hand-cuffs. any involved “(a) The driver of vehicle or resulting injury in an to accident de- arrived, When the Tulsa Police immediately person of shall death custody, fendant to their and was turned of ac- stop the scene such vehicle at pistol Sergeant of given King, to possible but close cident or as thereto as the Tulsa Police Traffic Division. Ser- in ev- return and forthwith shall then geant King that he removed the testified of ery at the scene event shall remain clip pistol, ammunition from the the re- has fulfilled the accident until he contained four and one shell from rounds, Every such quirements of section 10-104. pistol. pistol the chamber and of This obstructing without stop shall be made ammunition were introduced evidence into necessary. than traffic more witness, and by being identified pistol. P-38 German-made maliciously, or Any person wilfully, “(b) comply failing stop, or to Deputy feloniously Quinton corroborated Sheriff cir- story under such by requirements told said Rawlinson, officer with testi- felony cumstances, quoted case has been guilty approval shall he punished State, Love v. 882; thereof he upon conviction Okl.Cr. State, Okl.Cr., than by imprisonment for not less ten P.2d Jones year, or other cases. days than nor more one than than more fine not less nor $50 This Court will not reverse trial impris- $1,000, fine or both such court findings fact in connection added) (Emphasis onment.” with a motion suppress the evidence where there competent evidence in the pro- And Title 22 Okl.St.Ann. § record reasonably tending support vides : findings the trial court. It follows may, “A without a war- peace officer therefore, that the suppress motion to rant, public of- arrest a 1. For a evidence, and defendant’s demurrer fense, in his attempted or committed properly were overruled. ** *” presence. Defendant’s proposition second is that the trial court dispute There is no whatsoever erred in overruling ap- plication an automo for commitment this defendant was involved in to the Eastern Hospital State alleged; that some examination, bile accident as for mental determine question persons present in the accident were involved sani- ty. hospital taken in an ambulance. to the
Likewise, sufficiently the it shown that The record that shows this case was man defendant conducted himself originally May set on for trial the docket off-duty policeman, ner cause the C. as to court, in the district May but on 5th it was Rawlinson, Jerry Deputy H. and Sheriff passed to the docket. At that time June Quinton to have sufficient cause believe to public defender, the Tony Waller, who had attempting defendant was to commit represented the up defendant until felony, an ac to-wit: leave the scene of to time, requested and permitted was to with- cident This involving personal injury. draw from the insofar as the defend- cause when defendant started and resulted ant employed had May H. represent T. to attempted raced and his automobile motor him. it, got his to move after which he out of 6, On trial, the case was called for June street, automobile and walked across the both ready trial, sides announced for away from other the location where the jury empaneled and the court ad- persons involved in the accident were as journed for reopened, lunch. When court Therefore, sembled. we must conclude attorney for defendant called the justified in follow the officers were court’s attention to the fact that de- ing arresting and the defendant. fendant’s motion for commitment Having ar determined that the Oklahoma Hospital Eastern State men- for justified, rest was of the P-38 seizure tal observation had upon. not acted pistol justified, and the automatic was also discussion, After considerable concerning pis trial admitting court did not err in motion, the court asked the at- early tol In into evidence. case of torney for the question defendant: “The State, Yeager v. Okl.Cr. is, you, I ask question your is there this Court said: counsel, mind his about man’s abili- this person legally “Where a ty arrested for to aid in May, his own defense?” Mr. offense, an his whatever found Counsel, Honor, defense answered: “Your control, may inor be which I am an expert not on this and I don’t prove may used to be seized offense, it know to be true or not at this time. At prosecu-
and held for time, this no. As of March something; I tion.” didn’t know the defendant at that time.” prevented He states that the de- sanity of trial. this present
With reference
trial.
having
from
a fair
fendant
Title
Okl.St.Ann. §
provides:
by
raised
defend-
question was
not
deter-
the District Court
“In the event
for a new
ant
motion
until
filed his
a doubt as
there is
mines
days
was re-
trial
ten
after the verdict
individual, he shall
sanity
present
of the
turned,
pronounc-
on
date set for
Hospi-
ato
State
committed
ordered
at-
ing judgment and
Defendant
sentence.
tal,
in-
against such
proceedings
and the
trial
an af-
tached to his motion for
new
pend-
suspended
shall be further
dividual
by
admitted
signed
fidavit
juror,
hos-
said
report of the doctors of
ing the
However,
that the
the fact.
we observe
pital.”
are
juror’s
respect
duties in that
incidental
principal
president
to his
of the
duties as
application for
An unverified
trustees,
such do
nec-
board of
as
Hospital
the Eastern
State
commitment
essarily disqualify
per se.
him
De
the Public
for
was filed
observation
5,May
on
fender
defendant’s behalf
on
record does not
We observe also that the
testimony
sworn
affidavits or
1966. No
jurors
contain the examination of the
on
support
application,
dire,
offered
say
their voir
this Court cannot
supported
application
was not
gave, when ex-
jurors
what answers the
the same.
any positive facts to sustain
far
qualifications.
As
amined as
their
called to
Further,
application was not
objection
as the record
shows, no
after the
until
of the court
the attention
qualifi-
Baumgarten,
made to Mr.
ready
parties had announced
jury.
on
cations to sit
empaneled.
jury
had been
It was
the counsel
duty
of the
beginning
Nothing
at the
occurred
jurors
to examine the
voir dire and dis
on
in the mind of
trial to create
doubt
by proper investigation the facts af
cover
*6
court,
present sani-
concerning defendant’s
qualifications,
then to
fecting their
and
had occurred
ty.
apparently, nothing
And,
seasonably
might
raise
that
any objection
in the mind
prior thereto to create a doubt
any
panel.
In
of the
exist as to
member
counsel,
he was
for when
the defense
of
predicate
for
to
error
order
any doubt
by
court-
was
asked
the
there
if
juror
the
on account of the affidavit of
being able to
in his mind as to defendant
necessary
the
Baumgarten, it
for
would be
answered,
trial,
“At
in his
counsel
assist
affirmatively
ju
that
record to show
said
defender, who
public
no.” The
this time,
dire and
ror had
examined on voir
that
stated
application,
filed the unverified
he
had
under oath that
was not
stated
aunt
he
to have
had intended
prejudiced,
not such
biased or
and was
of
testify
was
concerning
point, but she
this
ficer as named and set out
statutes.
present
not
at the trial.
This record
recital of such ex
contains no
record,
As we review the
we are of the
A
all
defendant must exercise
amination.
opinion that this contention
defendant
of
is
find
rights
he has
the statute to
under
wholly without merit.
incompe
or
is
juror
out whether
not the
Defendant’s
proposition
third
disqualified;
supposed
and
tent or
it
on
that one
jurors,
of the
Baumgar-
R.
Mr. F.
counsel
de
the voir dire examination
for
ten,
competent
juror by
reason
go
qual
into the
thoroughly
fendant would
of the fact that he was—at the time of
developed
of
and
it
ifications
if
jurors,
president of
board of
trustees of
trial —
any
juror
disqualified
reason
Speery, Oklahoma;
town of
and that
statutory
any
ground
challenge
that a
of
responsibility
office entailed
for
made and sustained.
cause would be
being
city police
judge,
court
and that
court,
Cooper
fact was
not known
or
v.
to
It was stated
this Court
State,
278,
(quoted
eight days
until
601 State, wherein he had been convicted of approval with in Allen v. Okl.Cr. the of- 143, fense of assault deadly weapon, with a aft- 450): 105 P.2d er former felony. conviction of At the ques- duty defendant to “It is of the conclusion of his jury assessed jurors tion the their dire as on voir punishment at confinement in the state qualifications,
their
and if he fails to do
penitentiary
period
fifty
years.
for
so,
any objections
on
waives
Thereafter,
point,
disqualification is
though the
matter
even
has been submit-
after the rendition
unknown to
until
ted
petition
him
on
reconsideration
for re-
hearing,
of the verdict.”
under the
of this
rules
Court.
415,
State,
also:
petition
See'
Stouse v.
Okl.Cr.
The
for rehearing alleges
271;
State,
excessive,
punishment
v.
Okl.Cr.
Smith
is in
vio
State,
514;
statutes;
197 P.
Dixon v.
56 Okl.Cr.
charge
lation of
that the
State,
286;
42 P.2d
Okl.
Jennings
645;
laid under Title 21
that the
O.S.A. §
Cr.,
hereinafter referred entitled do above fifty years years, ten upon being oaths find our Jackie in charged permissible Eugene guilty as Roberson maximum under the law. (Emphasis herein.” information Judgment and as modified is added) affirmed. charge in infor- Considering the laid BUSSEY, J., concurs. bodily mation, intent alleges do harm, only infor- conclude we can provisions of under the was drawn
mation there- Considered 645.
Title O.S.A. § jury, verdict verdict of charge guilty of
found defendant ac- LAY, Error, in the information. We contained in Gene Donald Plaintiff attorney’s that the district knowledge also Oklahoma, The STATE Defend- candidly the lack office admits ant Error. kill. intent to prove defendant’s No. A-15026. stage second On Appeals of of Criminal Oklahoma. Court charge of jury guilty of found him 18, 1969. June pun- convictions, and assessed former fifty years confinement at ishment
penitentiary. provides O.S.Supp. (1963),
Title § punishment.
authority enhancement for part: provides
That section who, having been convict- person
“Every by impris- punishable any offense
ed of any penitentiary, commits
onment conviction, punisha- such
crime after as follows:
ble *
“* * subsequent offense If conviction that, a first
is such impris- punishable would
offender five for penitentiary in the
onment term, then
years, or less offense subsequent of such
convicted peni- by imprisonment
punishable exceeding ten
tentiary a term
years.” *8 therefore, opinion insofar are,
We pro- laid under information 645, supra, of Section
visions applica- statutes provision
above ex- contention
ble, that defendant’s punishment is valid.
cessive in order opinion, further We are served, better be justice will in defendant’s imposed Enid, L. Pope, Dennis for plaintiff from modified and the same error. should