Saylor v. StateSaylor v. State
- Reporters:
- , ,
- Before:
- Brett
OPINION
BRETT, Judge:Appellant, Larry Lavella Saylor, hereinafter referred to as defendant, was convicted in the District Court of Tulsa County, Casе No. CRF 70-2462, of robbery with firearms, and sentenced to not less than ten nor more than thirty years imprisonment. Judgment and sentence was impоsed on May 14, 1971, and this appeal perfected therefrom.
It was charged by information that the defendant, on Decembеr 22, 1970, robbed Charles Emery Lockhart with the use of a firearm. The evidence established that Charles Lockhart was an employеe of a Git-N-Go Store in Tulsa on December 22, 1970. At approximately 11:00 P.M., a man came into the store, produced a gun, and tоok the store’s receipts from Lockhart. Lockhart identified the defendant as the robber. Michele Morris testified that she had previously dated the defendant and that on the night in question, she had a telephone conversation with defendant in which he аdvised her that he was going to rob a store.
For the defense, defendant’s ex-wife testified that defendant was in her home during the morning and early evening hours of the day in question. She said that defendant was very intoxicated. Mildred Jean Wilson testified that she was with defendant all day on December 22nd, including the visit to his ex-wife’s home. Miss Wilson testified that she and the defendant also visited the home of Miss Wilson’s mother in Dewar, Oklahoma. According to Miss Wilson, after she and defendant left Dewar they returned to Tulsa, where they went directly to her аpartment. According to her testimony, defendant had been drinking heavily. Mildred Jean Wilson’s mother, Nettie Dobbs, also testified that her daughter and the defendant were in her home at approximately 8:00 to 9:00 P.M. on the evening of December 22nd.
Defendant testified that he had been drinking heavily on December 22nd. He *228 related that he had been with Miss Wilson on that day and had visited his ex-wife, and had also traveled to Dewar. According to defendant, he and Miss, Wilson returned to Tulsa around 11:00 P.M. and went directly to an apartment. Defendant denied having called Miss Morris and denied any involvement in the robbery.
It is defendant’s first contention that the court erred in instructing the jury regаrding the “Indeterminant Sentence Law.” The court instructed the jury that in assessing punishment they might fix a minimum and a maximum term of imprisonment, but if they did so the minimum tеrm “shall not be more than one-third of the maximum sentence.” Again, in another instruction, the court advised the jury that in assessing the punishment “the minimum term assessed by you may not be less than, but shall not be more than one-third the maximum sentence imposed.” Defendant argues that thеse instructions conflict with the provisions of
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It is defendant’s second assignment that the trial court erred when it instructеd the jury that “certain evidence has been introduced tending to show that the defendant has heretofore been conviсted of other distinct offenses from that charge” and that such evidence is not to be considered as tending to prove guilt оr innocence, but that it may be considered as affecting defendant’s credibility. During the cross-examination of the defendant, thе prosecutor inquired if he had any prior convictions for any state or federal offense. Defendant denied any such convictions, but admitted to city traffic offenses. Defendant argues that since there was no evidence of state or federal convictions, and since municipal violations are not considered for purposes of impeachment, that the giving of the instruction that former convictions are to be considered only for purposes of impeachment, constitutеd error.
We agree that where there was no evidence of actual felony convictions, such an instruction is inappropriate. However, under the facts of this case we are under the opinion that there was no prejudice to thе defendant. Since defendant admitted to a municipal violation, it perhaps well served his interest that the jury was instructed that fоrmer convictions could only be considered for purposes of credibility. Furthermore, the defendant offered no instructiоns to the court, nor did he make an objection to any of the court’s instructions. It is a familiar rule of this jurisdiction that when the defendant fails to request instructions or object to the trial court’s instructions, this Court, on appeal, will not consider alleged error regarding instructions unless such is of a fundamental nature so as to deny the defendant a fair and impartial trial. Meekins v. State, Okl.Cr., 420 P.2d 267 (1966). Schapansky v. State, Okl.Cr., 478 P.2d 912 (1971). We do not find the challenged instruction to be of a fundamental nature so as to deny a fair and impartial trial.
It is defendant’s third contentiоn that the trial court erred when it overruled *229 defendant’s objection to an alleged improper comment of the prosecuting attorney in closing argument. In the closing argument the prosecutor stated: “That man is wrong; he committed a crime agаinst the laws of the State of Oklahoma; he took and robbed a ...” Defendant argues that this statement was error as the prosecutor was giving his opinion as to the guilt of the defendant. As the objection was interposed to this comment, the prosecutоr finished his sentence, adding “based on the evidence.” For the remarks of the prosecuting attorney to constitute reversiblе error, they must be flagrant and of such a nature as to be prejudicial to the defendant. Montgomery v. State, Okl.Cr., 447 P.2d 469 (1968). We do not find that the challenged remark of the prosecutor was of such a nature.
Lastly, we find no merit to the contention that the punishment is excessive, since a conviction under