McCOIN v. STATE

McCOIN v. STATE
1970 OK CR 194
478 P.2d 905
Case Number: A-15127
Decided: 11/25/1970
Modified: 12/02/1970
Oklahoma Court of Criminal Appeals

An Appeal from the District Court of Stephens County; Harry L.S. Halley, Judge.

Halbert Verl McCoin was convicted of the crime of Carrying Firearms After Former Conviction of a Felony, was sentenced to serve six years imprisonment in the state penitentiary, and appeals. Reversed and remanded for a new trial.

A.W. Mauldin, Duncan, for plaintiff in error.

G.T. Blankenship, Atty. Gen., Tim Leonard, Asst. Atty. Gen., for defendant in error.

BUSSEY, Judge:

¶1 Halbert Verl McCoin, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Stephens County for the crime of Carrying Firearms After Former Conviction of a Felony; his punishment was fixed at six years imprisonment and from said judgment and sentence a timely appeal has been perfected to this Court.

¶2 The defendant's sole proposition contends that the trial court improperly overruled his objection to the Information which alleges two prior felony convictions on the face thereof.

"1. It is reversible error to read language of an information alleging defendant's prior convictions in the opening statement of the district attorney or refer to his prior felony convictions in said opening statement.

2. The charge of Carrying a Firearm, After Former Conviction of a Felony, 21 O.S. 1961 § 1283 [21-1283], must be tried in a two stage proceeding as set forth in Harris v. State, Okl.Cr., 369 P.2d 187. In the first stage, the jury shall determine if defendant is guilty of carrying a firearm. If the jury finds him guilty of carrying such weapon, then and in that event a second stage of the trial shall be held and evidence of a former conviction introduced and an instruction given on the penalty for carrying a firearm after former conviction of a felony."

¶4 This case presents another unfortunate situation, as the evidence of defendant's guilt is overwhelming, but regardless of his guilt and his prior convictions, he is entitled to the same fair trial as any other citizen of the State of Oklahoma.

¶5 We are of the opinion, from the situation here presented, that the defendant has not been afforded such treatment. Therefore, the judgment and sentence is hereby vacated, and the case is reversed and remanded for a new trial, in accord with the principals hereinbefore set forth.

¶6 Reversed and remanded for a new trial.

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

Footnotes:

1 This Information was read to the jury prior to the opening statement by the prosecuting attorney.