Evans v. State ( 1971 )

BUSSEY, Presiding Judge.

David Eugene Evans, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Osage County for the offense of Burglary in the Second Degree, After Former Conviction of a Felony; his punishment was fixed at a term of not less than forty-five (45) years imprisonment, and from said judgment and sentence a timely appeal has been perfected to this Court.

The defendant’s well prepared brief contains seventeen propositions of error. We are of the opinion that the propositions concerning (1) The giving of instruction #8 concerning the presumption of a strong inference of guilt; (2) Introduction of copies of informations of the former convictions; (3) The giving of instruction # 2 concerning punishment which provided the terms as of the date of trial rather than the applicable terms at the date of the offense; (4) No affirmative showing that defendant was represented by counsel or knowingly waived such at the times of the previous convictions; and (5) The giving of a “good time credit” instruction, to be well taken.

The accumulation of the above described errors ordinarily would require reversal; however, in the instant case the defendant has been incarcerated since May, 1968, and a reversal would require a second trial resulting in unnecessary expense to the State of Oklahoma.

This Court is of the opinion that justice would be better served if the sentence herein is modified to time served, and as so modified, otherwise affirmed. Modified to time served and affirmed.

NIX and BRETT, JJ., concur.