Hall v. State

BRETT, Presiding Judge,

dissenting:

I respectfully dissent to this decision for the reason I believe the elements of the crime must be proved beyond a reasonable doubt. Failure to prove the elements of a crime constitutes fundamental error. That type error can be raised whether objected to at trial or not. Rea v. State, 3 Okl.Cr. 281, 105 P. 386 (1909). Further, I believe the United States Supreme Court decision in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), is applicable to this situation. See also, my special concurrence in Assadollah v. State, 632 P.2d 1215 (Okl.Cr.1981). I would reverse and remand this conviction for a new trial.