Carter v. State

• Decision Date: 11 January 1956
• Docket Number: No. A-12235,A-12235
• Citation: 292 P.2d 435
• Parties: LeRoy CARTER, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 435

292 P.2d 435

LeRoy CARTER, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12235.

Criminal Court of Appeals of Oklahoma.

Jan. 11, 1956.

Syllabus by the Court.

1. No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination. Article 2, Section 17, Oklahoma Constitution.

2. When the defendant is brought before a magistrate on a charge of having committed a public offense, the magistrate must immediately inform him of the charge against him, and of his right to waive an examination before any further proceedings are had. 22 O.S.1951 § 251.

3. In a felony case, it is the accused's fundamental right to presume he is fully complained against in the preliminary complaint.

4. Motion to strike allegation of former conviction from information should be sustained, where such allegation was not contained in preliminary complaint, no proof of such fact was made at preliminary hearing, and the order directing accused to be held for trial in District Court contained no directive that would serve as a basis for such allegation.

5. Unnecessary repetition of correct propositions of law given undue prominence in the minds of the jury, as certain features of the State's case, may constitute error.

6. Obscurity which renders a verdict at all doubtful will be fatal.

7. The Criminal Court of Appeals takes judicial notice of its own opinions.

Appeal from the District Court of Muskogee County; Andrew Wilcoxen, Judge.

The plaintiff in error, LeRoy Carter, defendant below, was convicted for the offense of burglary, first degree, second offense; sentenced to ten years in the state penitentiary and he appeals. Reversed and remanded for a new trial.

Cecil E. Robertson and Paul Gotcher, Muskogee, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.

BRETT, Judge.

The plaintiff in error, LeRoy Carter, defendant below, was charged in the District Court of Muskogee County, Oklahoma, with the crime of burglary in the first degree after former conviction of a felony, 21 O.S.1951 § 1431 and § 1436 (defining burglary and punishment) and 21 O.S.1951 § 51 (second and subsequent offense). The crime was allegedly committed in Muskogee County on or about the first day of January, 1955. The defendant was tried by a jury, convicted, his punishment fixed, as a second and subsequent offender, at a term of ten years in the state penitentiary. Judgment and sentence was entered in accordance with the verdict of the jury; from which this appeal has been perfected.

Briefly, the information alleged that the defendant feloniously entered, in the nighttime, on or about January 1, 1955, the private dwelling house of Hallie Bledsoe, by breaking the lock on said dwelling house with intent to commit a crime therein, the said house being occupied by a human being and the entrance thereto being without the knowledge or consent of the said Hallie Bledsoe.

The defendant first urges the trial court erred in overruling his motion to quash the information. He contended in the motion, the information should be quashed for the reason the preliminary complaint alleged only the immediate offense of January 1, 1955, and contained no allegation as to a previous conviction of April 26, 1954. It is his contention that he was entitled to a preliminary hearing, not only on the felony allegedly committed on January 1, 1955, but also as to the previous conviction entered on April 26, 1954. This, he complains, was denied in violation of the Constitution of Oklahoma, Article 2, § 17 thereof, and other legislative enactments made pursuant thereto.

The state denies this contention and bases its argument on the proposition that 21 O.S.1951 § 51, in providing enhanced punishment for second and subsequent offenses, does not create or define a new or independent crime, but describes circumstances wherein one found guilty of a specific crime may be more severely penalized because of his previous conviction; that habitual criminality is a state and not a crime. Barger v. Burford, 93 Okl.Cr. 77, 225 P.2d 196; Johnson v. State, 79 Okl.Cr. 71, 151 P.2d 801. While we are in accord with the proposition that the second and subsequent offense statute, 21 O.S.1951 § 51, does not define an independent or separate crime, we do not believe that the authorities so holding are controlling on the question herein.

In considering this matter, at the outset we are confronted first of all with the provisions of Article 2, § 17 of the Bill of Rights to the Constitution of Oklahoma which reads:

'No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination.'

In 22 O.S.1951 § 251, we find it is provided, in part:

'When the defendant is brought before a magistrate * * * on a charge of having committed a public offense, the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings, and also of his right to waive an examination before any further proceedings are had.'

The question of the defendant's right to be informed in the magistrate's preliminary complaint that he must face the charge as a second or subsequent offender because of a prior conviction or convictions, is a matter of substance and not just form. Herein, in the complaint, the accused is charged only with burglary but not with being an habitual criminal; while the information herein, not only charges burglary in the first degree, but charges the accused as an habitual criminal. Hence, the case involves the fundamental right of the defendant as to the extent to which he is entitled to be informed in the preliminary complaint; that is, as to whether he is entitled to be informed not only as to the immediate basis thereof, but as to the possible punishment that may result from conviction therein as an habitual criminal. In short, is the accused entitled to be informed in the preliminary complaint of all the charges he will be compelled to meet at the time of the trial, as well as the limits of the punishment that may be imposed? We think he is.

How can the magistrate discharge the requirements of both Constitution and statute unless the complaint informs the accused of the immediate charge against him and of the seriousness of the penalty that may be imposed against him? The gravity of such an omission is apparent when measured by the fact that the accused, as an habitual criminal, may be compelled to suffer even life imprisonment. 21 O.S.1951 § 51, subd. 1. How can the accused intelligently waive a preliminary examination without being informed as to all the possibilities of the case? How can we preserve the substance as well as the letter of the Constitution and statutes on any other basis? How can we avoid the possibility that the defendant may, in a weak case, because of not being advised that he is to be charged as a second or subsequent offender, waive his valuable right to a preliminary examination and to aid of counsel? How can the accused be sure of the necessity for counsel if he is not fully complained against in the preliminary charge? In such a case where he has not been so informed, can it truthfully be said, in the absence of either a preliminary hearing or aid of counsel, that they were waived by the accused? There can be no waiver without essential knowledge necessary to establish both intent and that the waiver was voluntary. Waiver is never presumed without full knowledge of the facts. 92 C.J.S., Waiver, p. 1056.

Moreover, the accused has the fundamental right to presume he is fully complained against in the preliminary complaint, and cannot lawfully be held to answer a greater charge entailing more severe penalties. For example: A preliminary charge of manslaughter would not support an information for murder, nor a charge of second degree burglary one for first degree burglary unless the hearing before the magistrate develops the proof as to the more serious crime and an order is made holding the defendant to await trial on the more serious charge. In Rucker v. State, 88 Okl.Cr. 15, 191 P.2d 221, we held the county attorney is authorized to file an information against the accused, charging only the offense for which he was held, or substantially the same offense. We see no logical basis for any different rule in the case at bar. The charge of one as a second and subsequent offender, while not defining a new crime, is a classification defining the accused as a greater offender, enhancing the punishment that may be imposed, concerning which the defendant is entitled to be informed in the preliminary complaint. In no other way can an accused intelligently resolve the propriety of insisting on his constitutional rights.

Furthermore, a preliminary on a weak case may resolve the issue then and there. But, in the absence of a preliminary, aid of counsel, and full information as to the charge and its penalties, the accused may discover, all too late, that he may be tried and convicted on his past reputation, where the evidence of the immediate charge would not support conviction beyond a reasonable doubt. In some cases, where the prior offense is not alleged in the complaint, the prosecutor, in effect, may be able to work an entrapment of the accused by a pseudowaiver of valuable rights, through an unjust application of law, and not through voluntary choice or intelligent election by the accused. Thus, the accused may be subjected to what we deem an unequal protection of the law.

The court must take the long view of cases of this kind. Procedure should not be approved in habitual criminal cases which may subject an accused to a conviction sheerly upon the basis of prior reputation. Where the evidence is...