Since the dealership was lawfully in possession of the machine, it may be regarded as the owner thereof with respect to showing that appellant attempted to break into the property without the consent of the owner. See Jackson v. State, 86 Okla. Cr. 420, 193 P.2d 895 (1948). We find that this evidence was sufficient to establish that appellant attempted to break into the machine without permission to do so.
Defendant next contends that while the punishment herein is within the statutory limits, the term of 70 years is harsh enough to shock anyone's sense of justice. In support of this contention, he cites Jackson v. State, 86 Okla. Cr. 420, 193 P.2d 895, wherein this Court modified a conviction of Burglary Second Degree After Felony. This Court, speaking through the Honorable John Brett, in Jackson v. State, supra, stated: "The defendant E.R. Jackson contends that the judgment and sentence in a burglary
We have repeatedly held that this court will only consider those questions which are incorporated in the motion for new trial, and thereby submitted to the trial court for its ruling thereon, excepted to, and later assigned as error, unless the question is jurisdictional. Fitzgerald v. State, 97 Okla. Cr. 106, 259 P.2d 333; Jackson v. State, 86 Okla. Cr. 420, 193 P.2d 895; Todd v. State, 82 Okla. Cr. 424, 172 P.2d 345; Johnson v. State, 97 Okla. Cr. 255, 261 P.2d 905. Petition in error with casemade attached was filed in this Court on November 2, 1966. Brief was due to be filed on or before December 2, 1966. No brief has been filed, and no application for additional time within which to file brief has been made.
We have consistently held that an assignment of error not raised in the motion for new trial nor in the petition in error, will not be considered on appeal unless the question raised is so fundamental that it deprives the court of jurisdiction. Kizer v. State, 96 Okla. Cr. 92, 249 P.2d 132; Jackson v. State, 86 Okla. Cr. 420, 193 P.2d 895; Tyler v. State, 74 Okla. Cr. 39 122 P.2d 826; Herren v. State, 74 Okla. Cr. 424, 127 P.2d 215 Holloway v. State, 39 Okla. Cr. 88, 263 P. 176, and cases cited. However, since defendant in his brief relies entirely on his exception to the one instruction, we shall consider the same.
It has long been the rule in this jurisdiction that this Court will consider only such matters as appear in the record of the trial below and are reflected in the casemade. See Territory v. Cooper, 11 Okla. 699, 69 P. 813; Jackson v. State, 86 Okla. Cr. 420, 193 P.2d 895; Estes v. State, 95 Okla. Cr. 209, 242 P.2d 459. It is counsel's contention that he had, previous to March 15, 1963 worked out an arrangement with former County Attorney J.E. Bullard, the exact nature of which arrangement is never clearly reflected in the record or in counsel's oral argument, whereby the County Attorney was to strike from the information the charge of former convictions, and the defendant would then enter a plea of guilty and would be sentenced to five years in the penitentiary, which sentence was in some manner not to be carried out. Counsel contends that Mr. Bullard had informed him that such arrangement had been presented to the judge of the district court of Johnston County, and that the arrangement was satisfactory with the judge.
"COURT: We will strike the testing of the gun and the jury is admonished to disregard that. You may proceed." Under the circumstances as above stated, we are of the opinion that the County Attorney's statement did not constitute prejudicial error, since an objection to the statement was sustained and the jury admonished to disregard it. (See Jackson v. State, Okla. Cr.App., 193 P.2d 895, cert. denied, Jackson v. Burford, 338 U.S. 888, 70 S.Ct. 184, 94 L.Ed. 545) Under sub-assignment of Error B, we have carefully examined the excerpts from the record of the Assistant County Attorney's closing argument to which no exception was interposed, and are of the opinion that while Assistant County Attorney Latimer exceeded that wide latitude which is given to counsel in their closing argument and his conduct is deserving of censure, the argument, in the light of the entire record does not constitute fundamental error requiring reversal.
The law of burglary requires no greater proof as to ownership of the property broken into than that offered herein. Jackson v. State, 86 Okla. Cr. 420, 193 P.2d 895; Hames v. State, 54 Okla. Cr. 341, 20 P.2d 915. Conditions found in other tenants' offices, located in the building, clearly indicated the intent of the defendant in gaining entrance into Dr. McElwaine's offices.
Winn v. State, 94 Okla. Cr. 383, 236 P.2d 512; Scearce v. State, Okla. Cr. 326 P.2d 1065. The trial court also failed to instruct the jury on the proposition that the evidence of the former conviction should be considered only for the purpose of determining the punishment to be inflicted, and that such evidence could not be considered in determining the guilt or innocence of the accused of the particular charge against him. 21 O.S. 1951 ยง 51[ 21-51]; Cordray v. State, Okla. Cr. 268 P.2d 316; Jackson v. State, 86 Okla. Cr. 420, 193 P.2d 895, appeal denied 335 U.S. 806, 69 S.Ct. 24, 93 L.Ed. 363, cert. denied Jackson v. Burford 338 U.S. 888, 70 S.Ct. 184, 94 L.Ed. 545. It was fundamental error for the trial court not to so instruct. We do not find merit in the defendant's contention that the trial court erred in refusing to give his requested instruction on the theory of his defense, i.e., that the officer mistakenly identified the defendant as the law violator.
"A matter assigned as error in the motion for a new trial and in the petition in error, but not shown by the case-made to be true, cannot be considered in the appellate court." Herren v. State, 72 Okla. Cr. 254, 115 P.2d 258, 259; Jackson v. State, 86 Okla. Cr. 420, 193 P.2d 895. For the foregoing reason, the judgment and sentence is affirmed.
This court has many times held that matters occurring in open court during the progress of a trial must be placed in the casemade by recitals certified by the judge who presided at the trial of the case before the same will be considered by the criminal court of appeals. Jackson v. State, 86 Okla. Cr. 420, 193 P.2d 895. From the evidence in this case, it was only by providence that defendant failed to kill the prosecuting witness or others in the crowded Inn. It was only by reason of the failure of the shells to explode and his pistol to properly function that prevented him from possibly being tried for murder.