*1 trespasser’s self-defense, a right “Every person guilty manslaughter of of in right is within reasonable bounds to punishable degree by impris- is repeal a dangerous, unlawful attack after penitentiary onment in the for not less trespasser every has vailed himself of years.” than four escape. reasonable Thompson means of Considering the evidence defend- (1969). And we ant’s and the the sentence appropriate guide find instruction as a imposed limit, the statutory was well within jury determining for in whether conscientiously say we cannot the sen- defendant was entitled to the defense of tence assessed shocks conscience of this self-defense under the issues raised in this Court. Further, opinion case. we are the court’s No. 81 instruction and No. 92 is, The according- sentence adequate are and correct statements of the ly, AFFIRMED. right of sufficiently self-defense and cover theory of defense advanced BRETT, J., concurs. necessary fendant. It is not that the court jury instruct precisely language in J., P. results. requested by the defendant. It is sufficient for instruct
general principles of of law the case. Pear
son
(1976).
We find that the first and second
assignments of error are without merit. of excessive and modified. This SONNIER, Appellant, Francis Court has repeatedly ques stated that punishment tion of excessiveness of is to be study Oklahoma, determined a of all the Appellee. facts and The STATE of surrounding circumstances each individual F-78-259. case, and pow this Court does not have the to modify er a sentence unless we can con Criminal Oklahoma. scientiously say that under all the facts and July 1979. circumstances the sentence is so excessive shock the conscience of the Court. Dodson v. O.S.1971, Title 21 provides manslaughter in the first
degree as follows: prove beyond
1. Court’s 8: “It State Instruction No. is the burden of reasonable the defendant was not doubt that “Evidence has been as a defense to introduced self-defense acting you If find that the self-defense. charge he has commit- burden, then the has failed to sustain Manslaughter ted the crime of In The First guilty.” Degree. be found not must person justified using deadly “A force in 2. No. 9: Court’s Instruction person reasonably self-defense if that believed deadly necessary permitted person solely the use of force was “Self-defense is protect danger necessity. himself from imminent of death cause of Self-defense is not availa- great bodily or although may person aggressor harm. Self-defenseis a defense ble or who danger personal security or to life provoked another the intent to cause the with real, person, not have been if a altercation, reasonable great danger no matter how viewpoint personal security during becomes the alterca- reasonably would have believed tion of self-defense is reestab- unless the danger great he was imminent death or lished.” bodily harm. *2 appellant. Leeds, Muskogee, for Jesse L. Gen., N. Larry Derryberry, Atty. Ross Wilcoxen, Lillard, Gen., III, Atty. Asst. Jim Intern, appellee. Legal OPINION BUSSEY, Judge: Sonnier, hereinafter Appellant, Francis convicted referred to O.S.Supp. Robbery Firearms —21 With Court, Musko- 801—in the § No. CRF-77-70. gee County, Case sustained, proved prior felony that he had continuing course of conduct conviction, and his was en- part prosecutor could O.S.Supp. hanced accordance with 21 jury. influenced In a close 51. The prosecutor’s sentence was set actions could have necessitated seventy-five (75) reversal; years’ imprison- the instant case the evi- *3 ment. overwhelming, dence is and we do not lieve conviction that the must be reversed.
In his assignment error the defendant contends in that the argues substance defendant in his The assignment assignment evidence insufficient. This error that court the trial excusing, without merit. The objection, defendant was erred in over his a wit charged with the robbery armed of the subpoenaed by ness who had been Pharmacy Muskogee. True Discount fendant. The record reflects that the trial employees Three and customer identified an in on a hearing conducted camera him one of gunmen the two commit motion State to the exclude the testimo robbery. witness, ted the The brother ny defendant’s of the and then that sustained testified that the defendant had admitted the consistently motion. We held that that to him the defendant had committed of evidence is introduction a matter for robbery. The defendant also told his exercise of the trial court’s discretion— State, where brother he had 912 Zeigler hidden evidence of v. 76 Okl.Cr. crime, persons (1943), Haury and other P.2d testified and 533 discovery place of the (1975) evidence in the 991 we do instant case — and defendant had In left it. addi not abuse of that find an discretion. tion, discussing assignment rob of error is without merit. officer, bery with an off-duty police said assignment fourth The of error him, that looked like police it had and grant that court failed to the trial contin maybe he try to work out a deal. the defendant his chief uance when and The points defendant shows appear. out that counsel The record failed granted one-day witnesses identified him as one of the rob the court continu his eyes only, bers build and his appear; since the ance the defendant failed to when masked, gunmen argues were following morning and he but on the the defendant his conviction should attor again appear, not be allowed to and one of his failed stand on such weak strength evidence. for a neys The called in sick. Co-counsel moved continuance, or weakness of those was a and identifications motion was denied question for the jury, proceedings and the defense went on. In Warren put ably question counsel (1975) before the we held jury, through cross-examination, voluntarily both from and absent oneself again closing argument. to be But the identi one’s own trial is a waiver of the were only present. urges fications not the con defendant over evidence us to Warren, necting the Nor to the crime. The rule but we decline to so. do presented ample support proceed evidence to was it without counsel, the verdict of the jury. chief in view of the court’s trial ade finding the defendant could be The second error con Under quately represented by co-counsel. cerns the prosecuting conduct of the attor of the we do not ney. The defendant cites of in a number court’s find an abuse discretion in which stances District At Assistance motion for continuance. Com denial of the torney’s questions or could have comments P.2d pare McCormick prejudicial had a effect. We have exam ined each the defendant’s citations to the transcript, and we Finally, believe that he is correct. the defendant contends Although objections his consistently is evi- were excessiveness In get not a fair trial.
dence that he did Dis-
light of conduct of the Assistant agree Attorney, we are inclined
trict However, sentence is excessive.
weight of the evidence is such that justified.
reversal would not be Consider- offense, strong
ing the nature his
evidence of the defendant’s convictions,
twenty prior we believe that
justice if the defendant’s will best served
sentence is MODIFIED seventy-five from (45) forty-five years, oth-
erwise AFFIRMED. J.,P. in results.
BRETT, J., specially concurs.
BRETT, Judge, specially concurring:
While I concur in the results of this deci-
sion, place may approval I do not on this State, supra.
Court’s decision Warren MAINES, Appellant,
Charlie Oklahoma, Appellee. STATE
No. PC-79-302.
Court of Criminal of Oklahoma.
July 17, 1979. THE TO REMANDING
ORDER COURT DISTRICT from an order appeal is an County, dated Bryan applica- May, denying an day of 8th in Case post-conviction relief tion for was convicted Appellant CRF-77-126. Manslaugh- case, by jury, of after trial day 17th Degree First and on the ter in the fifteen March, sentenced to timely No direct imprisonment. years’ perfected appeal confined Appellant now sentence and