McDANIELS v. STATE

McDANIELS v. STATE
1970 OK CR 151
476 P.2d 351
Case Number: A-15989
Decided: 10/23/1970
Oklahoma Court of Criminal Appeals

An appeal from the District Court of Oklahoma County; Ben La Fon, Judge.

James Loyal McDaniels and Harold Dean Heard were convicted of the crime of Burglary Second Degree, After Former Conviction of a Felony, were sentenced to serve 25 years each in the state penitentiary, and appeal. Affirmed.

Don Anderson, Public Defender, for plaintiffs in error.

G.T. Blankenship, Atty. Gen., for defendant in error.

BUSSEY, Judge:

¶1 Harold Dean Heard and James Loyal McDaniels, were charged, tried and convicted in the District Court of Oklahoma County for the crime of Burglary Second Degree, After Former Conviction of a Felony; their punishment was fixed at 25 years imprisonment for each in the state penitentiary, and they appeal.

¶2 Briefly stated, the evidence adduced on the trial consisted of the testimony of Dr. Forrest M. Lingenfelter who stated that on January 23, 1970, he locked his offices in the Osler Building about 4:30 p.m., and returned, pursuant to a call, about 10:00 that night. He found a broken window and inside he saw a cabinet door open and the contents in disarray.

¶3 Cecil J. Combs testified that he was night janitor at the Osler Building and as he was cleaning sand traps in the corridor he saw two men approach him. He told them to get out, whereupon one of them went north and broke out a door and the other went south and broke out a door. Combs retired to Dr. Lingenfelter's office where he called police and noticed a broken window.

¶4 Officer Acox, of the Oklahoma City Police Department, testified that he had known defendant Heard about nine years and on January 23, 1970, he saw Heard about 6:00 p.m. in a car at Shartel and Sheridan. About ten minutes later he saw him at Main and Classen and successively at short intervals after that between 10th and 13th Streets and Hudson and Dewey. Heard was driving a 1961 green Cadillac and finally parked it at 409 NW 11th Street. Acox and his partner kept the car under surveillance from about 75 yards away. After about twenty minutes, two persons emerged from the car and walked away, Acox losing sight of them for the moment. Soon Acox got to the Osler Building where he saw Heard in the hallway and a second person, both of whom ran. Acox pursued the second person and, after firing a warning shot, arrested him. During the pursuit Acox saw the man throw something down, which Acox later discovered to be a crow bar and sledge hammer. Acox identified defendant McDaniels in court as the man he arrested that night. McDaniels' hand was bleeding badly from a cut and Acox took him to the hospital.

¶5 Arthur Lee Woodall and M.B. Cooper testified to the previous convictions of Heard and McDaniels.

¶6 Neither Heard nor McDaniels testified, nor offered evidence in their own behalf.

¶7 On appeal the defendants argue two assignments of error, neither of which possess sufficient merit to warrant extended discussion in this opinion; suffice it to say from the foregoing recital of facts, that the defendants' contention that the evidence was insufficient to support the verdict of the jury is patently frivolous.

¶8 The second contention that the punishment imposed is excessive is likewise without merit, for the evidence overwhelmingly supports the verdict of the jury and the punishment imposed was well within the range provided by law; and the record is free of any error which would justify modification or reversal.

¶9 For the reasons above set forth, the judgments and sentences appealed from are hereby affirmed.

BRETT, P.J., concurs.

NIX, J., not participating.