Taylor v. State

1972 OK CR 244, 501 P.2d 860, 1972 Okla. Crim. App. LEXIS 635

• Court: Court of Criminal Appeals of Oklahoma
• Decided: September 27, 1972
• Docket: No. A-17061
• Status: Published

Opinions

OPINION

SIMMS, Judge:

Appellant was informed against in the District Court of Oklahoma County for the offense of Unlawful Possession of a Barbiturate, tried before a jury, found guilty of the charge contained in the information, however, the jury stated in its verdict that they were unable to agree upon ■the punishment, and left the same to be assessed by the court. Thereafter, appellant was sentenced to a term of one year in the Oklahoma County Jail upon the jury verdict. From the judgment and sentence in the case, appellant has perfected a timely appeal to this Court.

Neither appellant nor the state has filed a brief in the appeal, and therefore, the Presiding Judge of this Court has ordered the appeal Summarily Submitted to be reviewed for prejudicial, fundamental, or constitutional error only.

Evidence adduced at trial indicated that on May 15, 1971, shortly after noon, the appellant was observed by an Oklahoma City Police Officer operating a motor vehicle near the intersection of McKinley and 44th. At this location the officer observed the right front wheel of the automobile to be wiggling and it appeared to the officer, according to his testimony, that the wheel was about to come off the vehicle. Thereupon, the officer turned on his red light and stopped the vehicle approximately twenty-five feet from the intersection. The officer alighted from the police car and approached the appellant’s vehicle, and the driver identified himself to be Paul Robert Taylor, the appellant.

Upon appellant’s failure to produce a drivers license, he was requested by the officer to step back to the scout car. At this time, appellant apparently became very excited over the fact that he did not know that the wheel was apparently coming off and he opened the trunk of the vehicle and removed a jack handle and went to the right front of the vehicle and began to jack it up.

Prior to the vehicle being stopped, the officer who had stopped the vehicle had requested a back-up unit. When the backup unit arrived, the appellant was requested again to come back to the scout car. After appellant was seated in the scout car the back-up officer walked up to the vehicle and advised the arresting officer that he, the back-up officer, had found some pills underneath the right front of the vehicle. At which time appellant was advised of his constitutional rights.

After being advised of his rights, appellant told the officers that he wanted to tell his side of the story as to why he had thrown the pills underneath the vehicle. At this time the officer re-advised appellant of his rights, appellant acknowledged that he understood those rights, that he wanted to tell his side of the story.

Appellant, according to the testimony of the officers, stated that the reason he had thrown the four pills under the car was that “If these officers found them on his person that he would be arrested and taken to the Oklahoma City Jail and booked on a charge of Possession of Barbiturates” (Tr. 9).

The back-up officer testified that on arriving at the scene, he saw appellant in front of the car in the process of jacking it up. At which point appellant was seen to reach into his front shirt pocket and throw something. The officer related that he couldn’t tell what it was so he got out of his unit, walked over to where appellant had been standing, looked under the car, and observed four small red pills lying on the ground.

It was stipulated at trial by and between the appellant and the State of Oklahoma that the four red pills thrown under the car by appellant were in fact, barbiturates. (Tr. 13).

Appellant testified in his own behalf before the jury to the effect that the seconal pills he had thrown under the automobile had been obtained through a prescription issued by a doctor in Ft. Worth, Texas. However, no evidence was adduced at trial to corroborate the fact that the seconal tablets were, in fact, issued pursuant to a legal prescription.

The record before us reflects that no written requested instructions were submitted by appellant to the court to be given to the jury. We have examined the instructions read to the jury by the court and find that they adequately state the law as applicable to the facts of the case as well as setting forth, in substance, the theory of defense.

We therefore find no fundamental error in the instructions given the jury by the court.

Having examined the transcript, as well as the record, we find no errors of law occurring during the trial and no impropriety attached to the jury verdict. Particularly is this true since appellant made no request into the record that the punishment be fixed by the jury. See, Dodson v. State, Okl.Cr., 476 P.2d 358, at p. 361 (1970). 22 O.S.1971, § 927.

Unquestionably, there was sufficient evidence presenting a fact question for the jury. Where there is a conflict in the testimony it is exclusive province of the jury to weigh the evidence and ferret out the truth and if there is competent evidence to support their findings, this Court will not disturb the verdict on appeal. Goodnight v. State, Okl.Cr., 366 P.2d 957; Austin v. State, Okl.Cr., 419 P.2d 569.

Appellant’s own testimony reflects that he had been previously convicted of Possession of Marijuana and had been found guilty before a jury of the offense of Grand Larceny, which conviction was being appealed. We cannot therefore say, under all the circumstances, that the sentence imposed by the trial court upon the jury’s verdict was such as to shock the conscience of this Court.

Therefore, the judgment and sentence of the trial court be and the same is hereby in all respects Affirmed.