Brown v. State

• Decision Date: 23 May 1911
• Citation: 115 P. 615,5 Okla.Crim. 567,1911 OK CR 120
• Parties: BROWN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

115 P. 615

5 Okla.Crim. 567, 1911 OK CR 120

BROWN v. STATE.

Court of Criminal Appeals of Oklahoma

May 23, 1911

Syllabus by the Court.

By the filing of an amended information in a misdemeanor case the original information is thereby set aside and abandoned.

Appeal from Pawnee County Court; H. T. Conley, Judge.

Ofa Brown was convicted of violating the prohibitory law, and appeals. Reversed.

D. Lafe Hubler and Geo. E. Merritt, for plaintiff in error.

DOYLE J.

An information was filed in the county court of Pawnee county on September 22, 1909, charging that on the 1st day of September, A. D. 1909, in said county and state, one Ofa Brown did then and there willfully, knowingly, and unlawfully have in his possession certain intoxicating liquor, to wit one barrel of bottled beer, with the unlawful intent to then and there convey said intoxicating liquor from the Santa Fé depot in the town of Ralston to the town of Fairfax. Afterwards on the 24th day of September, 1909, there was filed an amended information which charged that on the 1st day of September, 1909, in said county and state, Ofa Brown did then and there willfully, knowingly, and unlawfully have in his possession certain intoxicating liquor, to wit, one barrel of bottled beer, which he, the said Ofa Brown, was then and there carrying and conveying said intoxicating liquor from the Santa Fé depot, in the town of Ralston, to Fairfax. October 5th a demurrer was filed and overruled. October 7th the case was called for trial, and on the same day the jury returned the following verdict: "We, the jury, impaneled and sworn to try the issues in the above-entitled cause, do, upon our oaths, find the defendant guilty as charged in the information." Motions for new trial and in arrest of judgment were duly filed. October 23 1909, the court overruled said motions and sentenced defendant to be imprisoned for a period of 30 days and that he pay a fine of $300 and costs. From which judgment an appeal was taken by filing in this court on January 13, 1910 a petition in error with case-made attached.

Of the various assignments of error, it is only necessary to consider one question presented by the record; that is, could the defendant be tried on the original information when an amended information was filed and demurrer thereto overruled.

The only recital in the record that would indicate that the defendant was tried upon the original information appears in the certificate of the trial judge wherein he states: "I further certify that there are two informations in said case-made, one marked as 'Amended Information.' The defendant in the above-entitled case was tried on the original information. He entered a plea of not guilty to the charge against him in the said information, and the said original information was read to the jury before the trial and the same was treated by the attorneys and by the court during the trial as an amended information." It is assigned as error: "That the court erred in adding to the certificate of settlement of the case-made the statement that the...