[1] DECISION AND OPINION
[2] Appellant, Richard Lee Cothrum, hereafter referred to as defendant, was tried by a jury in the District Court of Oklahoma County for the offense of Uttering a Forged Prescription, After Former Conviction of a Felony, in that court's case no. CRF-69-1636; the jury found defendant guilty and at the closing of the second stage of the proceedings, the jury assessed defendant's punishment at fifteen years confinement under the direction and control of the State Department of Corrections. From that judgment and sentence this appeal has been perfected. We affirm.
[3] The facts reveal that on or about July 12, 1969, defendant allegedly presented a forged prescription at the Ridgecrest Pharmacy in Oklahoma City. In his trial the defendant was identified by Mr. Charles *Page 1300 Farris, an intern pharmacist at the pharmacy. Mr. Farris identified the prescription which was presented to him for filling, and identified defendant as being the man who presented it to him and paid for the prescription. Because of minor discrepancies on the prescription, Mr. Farris became suspicious and it was subsequently determined to be a forged prescription. The pharmacist at the Ridgecrest Pharmacy, Miss Ann Cowans, testified concerning the prescription, and after the discrepancies were brought to her attention by Mr. Farris, she called the office of Dr. John R. McInnis, who allegedly issued the prescription. She stated that she was advised by the Doctor's office that Dr. McInnis was in New York City. The prescription having allegedly been issued on July 11, 1969, she concluded that it was impossible for him to have signed the prescription, so she notified the police. She stated that the police detectives brought six photographs when they came out to investigate, and among the photographs was that of the defendant. She related that she did not see the defendant when he came into the pharmacy, that Mr. Farris waited on defendant.
[4] Dr. John R. McInnis testified and stated that the prescription was not issued by him, and that the signature thereon was not his. Officer Henderson of the Oklahoma City Police Department testified concerning his investigation with Officer Huckaby. He related that both detectives went to the pharmacy with the photographs, made inquiry concerning the manner in which the prescription was presented, and showed the six photographs to the two pharmacists. He related that after Mr. Farris identified the picture of defendant he and Officer Huckaby went to defendant's home, but were unable to find him there. They then went to a known friend of defendant, a Mr. De Loren Pierce, and when they arrived at the Pierce residence they saw defendant's car parked there. Officer Henderson related that he went to the front door and knocked; and Officer Huckaby went to the back door of the house. After a brief period of time the front door was opened to him and he entered, searching for defendant. He was unable to find him in the house, but when he reached the back yard Officer Huckaby had defendant in custody.
[5] Officer Huckaby testified to essentially the same facts; he related further that when Officer Henderson entered the house he observed defendant drop something out of the back window, after which he proceeded out of the window himself and started walking quickly away from the house. Officer Huckaby apprehended the defendant and took from him a vial containing six blue tablets which were identified as being the same type tablet as the initial twenty-four obtained by the forged prescription. Defendant was subsequently charged with uttering a forged prescription. At the conclusion of Officer Huckaby's testimony the State rested its case.
[6] Defendant called as his witness Mr. Charles Farris, the intern pharmacist, and attempted to cause him to change his story, without success. He then called Marilyn Pierce, the ex-wife of De Loren Pierce, at whose residence defendant was found. She was unable to state with certainty whether defendant was in the house or in the back yard, or where he might have been, except that he was there that day helping her clean the house.
[7] Defendant called Dr. Leonhardt Rozin, who testified that he had earlier issued two prescriptions for defendant, one of which was for a narcotic drug, Numorphane, and another for a sulfa-type drug. Defendant called Mr. B.J. Mitchell, the owner of the Ridgecrest Pharmacy, as his next witness. Mr. Mitchell identified certain prescriptions which had been legally issued to the defendant during the period in question, and stated that Dr. Rozin's prescription was filled on June 5, 1969. He identified other prescriptions which had been filled for defendant, but all were before June 12, 1969, when the alleged forgery occurred. At the conclusion of this witness' testimony, the defense rested. *Page 1301
[8] The appeal from this conviction was filed by the Public Defender for the defendant; but no brief was submitted with the petition in error and records. The defendant specifically stated to the trial court, and this Court, by written motions and letters as well, that he did not want the public defender to file his appeal or to file a brief in his appeal. In lieu of a brief the defendant has filed numerous pleadings, all of which have been considered and found to be without merit for the purpose they were filed. However, from those pleadings the Court is able to gain some indication concerning defendant's complaints about his trial and conviction; and because no brief has been filed, we have carefully examined the record before the Court.
[9] The record reflects that defendant had several attorneys prior to his trial each of whom was for some reason or another dismissed by the defendant. Prior to trial his first attorney filed a demurrer to the information and a motion to quash the jury panel. Both motions were properly denied, allowing defendant's exceptions. Between the time the charge was filed and the time for trial, both the State and the defendant were granted continuances upon their separate requests. Defendant may not indefinitely delay his trial through series of changes in legal counsel. Thompson v. State, Okla. Cr. 462 P.2d 299 (1969).
[10] When defendant's trial was called on April 9, 1970, in open court defendant discharged his retained counsel and stated he would defend himself with appointed counsel sitting at the table with him. After explaining his right to counsel, the court agreed with defendant's decision and announced that trial would be commenced the following morning. The court then instructed the court clerk to issue subpoenas for all witnesses defendant designated. Throughout the trial defendant acted as his own counsel. Defendant may waive any constitutional right which is largely for the benefit of accused or in the nature of a personal privilege, including his right to counsel, so long as he does so knowingly and intelligently. Tanner v. State, Okla. Cr. 381 P.2d 888 (1963); Thompson v. State, supra; Carney v. State, Okla. Cr.406 P.2d 1003 (1965); People v. Pitman, 25 A.D.2d 637, 268 N.Y.S.2d 83; Danks v. State, 18 Utah 2d 212, 418 P.2d 488. United States v. Dougherty, CA, DC, 6/30/72, 11 Cr.L. 2337.
[11] Immediately prior to trial defendant filed "pro se" a motion to quash the information for the reason he was not indicted by a grand jury, but this Court has long held that such complaint is without merit. Hawkins v. State, Okla. Cr. 440 P.2d 991 (1968); Morgan v. State, 15 Okla. Cr. 158, 175 P. 625 (1918). He also complained that the former convictions used in the second stage of the proceedings were improper, asserting that he was found not guilty on those charges. However, the charges to which he makes reference were not listed on the information to support the former conviction charge. The State listed conviction number 30733, for Possession of Narcotics, After Former Conviction of a Felony; and conviction number 30762, for Possession of Narcotics, After Former Conviction of a Felony, in both of which defendant entered a plea of guilty with retained counsel, Mr. Carroll Samara, being present; and in both of which on September 20, 1965, defendant was sentenced to five years imprisonment with the provision that the sentences were to run concurrently. The records of those convictions were identified by Mr. Larry Morgan, Deputy Court Clerk; and defendant was identified in court as being the same person formerly convicted, by Mr. Tom Harley who served as Assistant District Attorney and was present in the court at the time defendant sustained both convictions.
[12] During the second stage of the proceedings defendant asserted — and attempted to prove — that he made an effort to appeal the two above convictions; however, the records of this Court do not reflect any such attempt being made in this Court. Defendant filed a petition for a writ of mandamus relating to a subsequent matter *Page 1302 pending in the District Court of Oklahoma County, but that was denied and is reported as Cothrum v. Parr, Okla. Cr. 426 P.2d 382 (1967).
[13] Another complaint lodged by defendant is that the trial judge prejudiced him in the eyes of the jury when he explained to the jury that the defendant had fired his legal counsel and was consequently representing himself. While that part of the prosecutor's opening statement is not contained in the record, at page 162 of the record, when defendant was attempting to argue his motion for mistrial and motion to set aside the jury verdict, the following appears:
"MR. COTHRUM: And that Your Honor set the Jury's conviction aside on the grounds that I received, through your opening statement, through your statement to the Jury, directly to the jury, you give reason why I did not have the lawyer which did not pertain to the jury.
"THE COURT: What — when do you say I said anything?
"MR. COTHRUM: When Mr. — when Mr. Ryan was making his opening statement, he was just telling them why that I was defending myself and you tried to clarify the matter for him to the jury by making remarks I had ample chance to have a lawyer and I fired him.
"THE COURT: Well, I was just simply explaining why you were — don't — let those be overruled.
"MR. COTHRUM: Exceptions allowed?
"THE COURT: Yes, sir, certainly."
[14] There exists little doubt in this Court's mind that the evidence sustained the jury's verdict finding the defendant guilty of the charge. We doubt that the trial judge's remarks may have prejudiced the jury in assessing the punishment. When instructing the jury on the second stage of the proceedings, instruction number four instructed the jury concerning the punishment for: The first offense of uttering a forged prescription; for uttering a forged prescription after one former conviction related to narcotic drugs; and lastly, instructed:
"UTTERING A FORGED PRESCRIPTION, after having been convicted two or more times, or on the third offense, relating to narcotic drugs, this is punishable by imprisonment in the State Penitentiary for a term of not less than ten (10) years or more than twenty (20) years or fined not more than $5,000."
[15] The instant conviction was defendant's third conviction related to narcotic drugs and he could have been sentenced to a maximum of twenty (20) years imprisonment, but the jury chose not to assess the maximum. We are left to conclude that the trial judge's remarks, as complained of by defendant, were not so prejudicial as he would attempt to lead this Court to believe. Otherwise, defendant would have received the maximum sentence. This Court held in Simpson v. State, Okla. Cr. 304 P.2d 1004, which is applicable to this case:
"A verdict will not be set aside by reviewing court on ground that punishment is excessive, unless it appears that jury acted from bias or prejudice and that the punishment assessed bears no reasonable relation to the crime committed."
[16] Because of the unique nature of this trial, we have carefully considered the record before the Court, including all the "pro se" pleadings filed by defendant; and we do not find error sufficient to disturb the verdict of the jury, or the punishment assessed. The court's instructions to the jury were proper; and except for the defendant's insistence that he be allowed to represent himself, nothing of unusual nature would have otherwise appeared in the record. But because the trial court insisted that the defendant have legal counsel present to assist the defendant, we cannot say that defendant was not assured all his constitutional rights to legal counsel. From the record of trial, defendant received *Page 1303 a fair trial in accordance with due process of law; and we conclude that the judgment and sentence imposed in District Court, Oklahoma County, Oklahoma Case No. CRF-69-1636, should be affirmed.
[17] It is so ordered.
[18] BUSSEY, P.J., and SIMMS, J., concur.
[19] ON REHEARING