third assignment error in Oklahoma

1987As their first subproposition, the appellants claim that evidence of other crimes was admitted in violation of the rules set forth in Burks v. State, 594 P.2d 771 (Okl.Cr.1979).

1987As their first subproposition, the appellants claim that evidence of other crimes was admitted in violation of the rules set forth in Burks v. State, 594 P.2d 771 (Okl.Cr. 1979).

1937The rule of this state thereon is as stated in Abraham v. Gelwich, 123 Okla. 248 , 253 P. 84 , and many other cases, to wit: “Where the defendant demurs to the evidence in chief of the plaintiff and defendant afterwards introduces evidence and thereafter plaintiff introduces further evidence, and in rebuttal, and the defendant fails to renew his demurrer to all the evidence, or request an instructed verdict, and permits the issues joined to be submitted to the jury upon all the evidence without objection and exception, the verdict, on review in this court, is conclusive, so far as such evidenc

1937The rule of this state thereon is as stated in Abraham v. Gelwich, 123 Okla. 248 , 253 P. 84 , and many other cases, to wit: “Where the defendant demurs to the evidence in chief of the plaintiff and defendant afterwards introduces evidence and thereafter plaintiff introduces further evidence, and in rebuttal, and the defendant fails to renew his demurrer to all the evidence, or request an instructed verdict, and permits the issues joined to be submitted to the jury upon all the evidence without objection and exception, the verdict, on review in this court, is conclusive, so far as such evidenc

1984We recently considered the identical argument in McDonald, supra, and for the reasons stated therein we find the appellant’s third assignment of error to be without merit.

1981The appellant urges that this Court follow the holding in Cox v. Hutto, 589 F.2d 394 (8th Cir. 1979), which held that a stipulation of prior convictions by defendant’s counsel without defendant’s consent or knowledge was a deprivation of defendants due process rights.

1979In Landrum v. State, Okl.Cr,, 486 P.2d 757 (1971), we noted that without a transcript of the voir dire or other pertinent proceedings, there was nothing for this Court to review with regard to the jury selection.

1979The third assignment of error then asserts that this refusal deprived the defendant of his right to counsel in violation of United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967).

1979The third assignment of error then asserts that this refusal deprived the defendant of his right to counsel in violation of United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967).

1979Dodson v. State, Okl.Cr., 562 P.2d 916 (1977); Selsor v. State, Okl.Cr., 562 P.2d 926 (1977); Roberts v. State, supra. We therefore find that the defendant’s third assignment of error is without merit.

1979Dodson v. State, Okl.Cr., 562 P.2d 916 (1977); Selsor v. State, Okl.Cr., 562 P.2d 926 (1977); Roberts v. State, supra. We therefore find that the defendant's third assignment of error is without merit.

1979Dodson v. State, Okl.Cr., 562 P.2d 916 (1977); Selsor v. State, Okl.Cr., 562 P.2d 926 (1977); Roberts v. State, supra. We therefore find that the defendant’s third assignment of error is without merit.

1979Dodson v. State, Okl.Cr., 562 P.2d 916 (1977); Selsor v. State, Okl.Cr., 562 P.2d 926 (1977); Roberts v. State, supra. We therefore find that the defendant's third assignment of error is without merit.

1978To support her argument, the defendant cites Dominguez v. City of Tulsa, Okl.Cr., 539 P.2d 758 (1975), and Ridgeway v. State, Okl.Cr., 553 P.2d 511 (1976), in which we held that the Miller standards should have been used in trying nude dancers on charges of outraging public decency.

1978To support her argument, the defendant cites Dominguez v. City of Tulsa, Okl.Cr., 539 P.2d 758 (1975), and Ridgeway v. State, Okl.Cr., 553 P.2d 511 (1976), in which we held that the Miller standards should have been used in trying nude dancers on charges of outraging public decency.

1978To support her argument, the defendant cites Dominguez v. City of Tulsa, Okl.Cr., 539 P.2d 758 (1975), and Ridgeway v. State, Okl.Cr., 553 P.2d 511 (1976), in which we held that the Miller standards should have been used in trying nude dancers on charges of outraging public decency.

1978To support her argument, the defendant cites Dominguez v. City of Tulsa, Okl.Cr., 539 P.2d 758 (1975), and Ridgeway v. State, Okl.Cr., 553 P.2d 511 (1976), in which we held that the Miller standards should have been used in trying nude dancers on charges of outraging public decency.

1977As stated in French v. State, Okl.Cr., 377 P.2d 501 (1963), it is reversible error for an accused to be brought into court and before jurors while shackled.

1977In support of their argument the defendants rely on 22 O.S. § 1228 which reads in pertinent part as follows, to-wit: “Officers may break open an outer or inner door . . ., to execute the warrant, if, after notice of his authority and purpose he [is] refused admittance.” The defendants further rely on Sears v. State, Okl.Cr., 528 P.2d 732 , wherein this Court held that there was an improper execution of a search warrant when police officers pushed open an unlatched door and entered without first announcing their identity and purpose and being denied admittance.

1977In Samples v. State, Okl.Cr., 337 P.2d 756 (1959), we stated: “In view of the evidence, we must apply the principle long adhered to by this court that a conviction will not be reversed for alleged misconduct of the prosecuting attorney, unless this court can say that the prosecuting attorney was not only guilty of misconduct, but that such misconduct might, in some degree, have influenced the verdict against the defendant. . . . ” The defendant alleges in the third assignment of error, that the trial court erred in refusing to grant a mistrial on the grounds of misconduct of the District Attor

1976Defendant cites as authority Grate v. State, Okl.Cr., 529 P.2d 1001 , wherein this Court held that the appellant was entrapped as a matter of law because the undercover agent feigned withdrawal symptoms and begged the defendant to obtain heroin for him.

1976The fourth assignment of error is that the elements of attempted burglary were not proven as set out in Parks v. State, Okl.Cr., 529 P.2d 513 (1974) and Hawkins v. State, Okl.Cr., 510 P.2d 693 (1973).

1976The general rule is enunciated in the second paragraph of the Syl *927 labus to Lambert v. State, Okl.Cr., 471 P.2d 935 (1970), as follows: “When evidence is taken outside the hearing of the jury on a Motion to Suppress incriminatory statements made by an accused while in custody and there is sufficient evidence to support the ruling of the trial court that the defendant had been thoroughly advised of his constitutional rights prior to making any statement and knowingly and intelligently waived such rights and made incriminatory statements, the court’s ruling will not be disturbed on appeal.”

1976In the case of Moulton v. State, Okl.Cr., 476 P.2d 366 (1970), this Court held in the first paragraph of the Syllabus: “The general rule in this state is that when a defendant is put upon trial for one offense he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone and the admission of evidence of other crimes, either prior or subsequent to the offense for which he is on trial is inadmissible.

1976Davis v. State, 7 Okl.Cr. 322 , 123 P. 560 ; Campbell v. State, 23 Okl.Cr. 250 , 214 P. 738 .” Defendant asserts, in the third assignment of error, that the trial court erred by not sustaining the Motion in Lim-ine to prevent the State from introducing evidence as to property in the service station, but not in the restroom.

1976Davis v. State, 7 Okl.Cr. 322 , 123 P. 560 ; Campbell v. State, 23 Okl.Cr. 250 , 214 P. 738 ." Defendant asserts, in the third assignment of error, that the trial court erred by not sustaining the Motion in Limine to prevent the State from introducing evidence as to property in the service station, but not in the restroom.

1976Davis v. State, 7 Okl.Cr. 322 , 123 P. 560 ; Campbell v. State, 23 Okl.Cr. 250 , 214 P. 738 .” Defendant asserts, in the third assignment of error, that the trial court erred by not sustaining the Motion in Lim-ine to prevent the State from introducing evidence as to property in the service station, but not in the restroom.

1976Davis v. State, 7 Okl.Cr. 322 , 123 P. 560 ; Campbell v. State, 23 Okl.Cr. 250 , 214 P. 738 ." Defendant asserts, in the third assignment of error, that the trial court erred by not sustaining the Motion in Limine to prevent the State from introducing evidence as to property in the service station, but not in the restroom.

1976Davis v. State, 7 Okl.Cr. 322 , 123 P. 560 ; Campbell v. State, 23 Okl.Cr. 250 , 214 P. 738 .” Defendant asserts, in the third assignment of error, that the trial court erred by not sustaining the Motion in Lim-ine to prevent the State from introducing evidence as to property in the service station, but not in the restroom.

1976Davis v. State, 7 Okl.Cr. 322 , 123 P. 560 ; Campbell v. State, 23 Okl.Cr. 250 , 214 P. 738 .” Defendant asserts, in the third assignment of error, that the trial court erred by not sustaining the Motion in Lim-ine to prevent the State from introducing evidence as to property in the service station, but not in the restroom.

1976The fourth assignment of error is that the elements of attempted burglary were not proven as set out in Parks v. State, Okl.Cr., 529 P.2d 513 (1974) and Hawkins v. State, Okl.Cr., 510 P.2d 693 (1973).

1975Their instruction reads as follows : “[H]owever, you are instructed that the right of self-defense is given to the citizen for his protection and it cannot be pleaded as a defense and relied upon for an acquittal by one who, himself, is the aggressor, or by one who enters voluntarily into a difficulty, armed with a deadly weapon, no matter in how much danger he may be placed in the course of the difficulty, nor how iminent (sic) his peril may become during the course of the difficulty.” In Hartley v. State, Okl.Cr., 519 P.2d 544 (1974), citing with approval Brannon v. State, 24 Okl.Cr. 362 , 2

1975This procedure was approved by this court in the case of Snider v. State, 71 Okl.Cr. 98 , 108 P.2d 552 , and we hereby adopt said procedure as that to be followed by the trial courts in all cases where defendant makes his request as provided for in Sec. 926, Title 22, supra.” We feel the trial judge, in the instant case, properly adhered to the guidelines in 22 O.S. 1971 , § 927, as so construed by case law. 3 Therefore we find the defendant’s third assignment of error to be without merit.