LOVETT v. STATE

LOVETT v. STATE
1969 OK CR 184
455 P.2d 713
Case Number: A-15089
Decided: 05/28/1969
Oklahoma Court of Criminal Appeals

An appeal from the District Court of Texas County; Merle Landsden, Judge.

George Thomas Lovett, Jr. was convicted of the crime of Carrying a Firearm After Former Conviction of a Felony, was sentenced to serve one year in the State Penitentiary and appeals. Judgment and sentence modified and reduced, and as so modified and reduced, affirmed.

Bill Sheehan and John Board, for plaintiff in error.

G.T. Blankenship, Atty. Gen., W. Howard O'Bryan, Jr., Asst. Atty. Gen., Don E. Woods, Dist. Atty., for defendant in error.

BUSSEY, Judge.

¶1 George Thomas Lovett, Jr., hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Texas County for the offense of Carrying a Firearm After Former Conviction of a Felony. Although the undisputed evidence offered by the State on the trial established that the defendant had in his possession a loaded .22 caliber Luger type pistol on the evening of November 5, 1967, the State wholly failed to establish the former convictions alleged in the Information in that it failed to introduce properly authenticated copies of the judgment and sentence allegedly rendered against the defendant in his previous conviction. Reluctantly, and over the objection of counsel, the trial court permitted the State to introduce records from the Texas Department of Corrections which failed to meet the requirements of the statutes of this state, and the previous decisions of the Court.

¶2 It is, therefore, readily apparent that the verdict of the jury and the judgment and sentence based thereon, is not supported by sufficient evidence establishing the commission of Carrying a Firearm After Former Conviction of a Felony. The record, however, does disclose sufficient and undisputed evidence to establish that the defendant was guilty to Carrying a Firearm, as defined under 21 O.S. § 1272 [21-1272], the same providing:

"It shall be unlawful for any person in the State of Oklahoma to carry upon or about his person any pistol, revolver, bowie knife, dirk knife, switch-blade knife, spring-type knife, knife having a blade which opens automatically by hand pressure applied to a button, spring, or other device in the handle of the knife, loaded cane, billy, metal knuckles, or any other offensive or defensive weapon, except as in this article provided."

¶3 The punishment for a violation of 21 O.S. § 1272 [21-1272], supra, is provided in 21 O.S. § 1276 [21-1276], the pertinent part authorizing the imposition of a fine not less than $25.00, nor more than $50.00, or by imprisonment in the county jail not to exceed thirty days, or both.

¶4 In the light of the record before us, we are of the opinion that the ends of justice can best be served by modifying the sentence from one year imprisonment in the State Penitentiary for the crime of Carrying a Firearm After Former Conviction of a Felony, to a judgment and sentence of Twenty-five ($25.00) Dollars and costs, and Thirty (30) days imprisonment in the County Jail, for the included offense of Carrying a Firearm, in violation of 21 O.S. § 1272 [21-1272], and as so modified and reduced, the judgment and sentence appealed from is affirmed. Judgment and sentence modified and reduced, and as so modified and reduced, affirmed.

BRETT, P.J., and NIX, J., concur.