City of Tulsa v. Haley, 0-76-282

• Decision Date: 13 August 1976
• Docket Number: No. 0-76-282,0-76-282
• Citation: 554 P.2d 102
• Parties: CITY OF TULSA, Appellant, v. George HALEY, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 102

554 P.2d 102

CITY OF TULSA, Appellant, v. George HALEY, Appellee.

No. 0-76-282.

Court of Criminal Appeals of Oklahoma.

Aug. 13, 1976.

On Rehearing Sept. 1, 1976.

Edward J. Hicks, Asst. City Atty., for appellant.

No appearance for appellee.

OPINION

BUSSEY, Judge:

George Haley, Appellee, was charged in the Municipal Criminal Court of Record of the City of Tulsa, Oklahoma, for three offenses of Assault on a Police Officer. On February 24, 1976, these charges were consolidated for jury trial. Prior to empanelling the jury, the City requested leave to amend all the Informations to reflect simple 'Assault and Battery.' The City's request was granted over objection by Appellee. On the same day, after a jury was empanelled and sworn to try the case, the City again requested leave of the Court to amend the three Informations to reflect precisely how the assaults and batteries were alleged to have taken place. The Appellee objected to the amendments and orally demurred to all three Informations. After hearing argument from both sides, the Court overruled the City's request to amend and sustained the Appellee's demurrer and ordered that jeopardy had attached, and no further action could be taken by the City in these three cases. From said ruling the City has perfected a timely appeal to this Court, reserving questions of law.

The City's first assignment of error is that the trial court erred in holding that the Informations were insufficient as a matter of law to withstand demurrers. The Informations, as amended prior to trial, read, in pertinent part, as follows:

'. . . Comes now Waldo F. Bales, the duly appointed qualified and acting City Attorney, of the City of Tulsa, Tulsa County, Oklahoma, and inform the Municipal Court of the City of Tulsa, Tulsa County, Oklahoma, that heretofore, to-wit: On or about the 2nd day of January, 1976 within the corporate limits of the City of Tulsa, Tulsa County, Oklahoma, George Haley the above named defendant, did then and there unlawfully, wrongfully, wilfully and knowingly commit an assault and battery upon the person of (J. Isnardi) (R. Fagan) (D. Bradley), at 1120 South Utica, Hillcrest Hospital. . . .'

The City contends that a defendant, who pleads and goes to trial without first demurring or otherwise objecting to the Information, has waived all defects in the Information except that the Information fails to allege a crime or that the trial court lacks Jurisdiction over the matter. Based upon this contention, the City asserts that the mere fact the Informations could have been better, or the fact that they alleged the offenses in the form of conclusions, is not the type of deficiency which can be raised for the first time after a jury has been empanelled and sworn.

Although the City is correct in contending that defects in an Information can be waived by not entering a timely demurrer, the defects in the Informations herein are the type which are not waived and may be raised at any time, even for the first time on appeal. See Cornett v. State, 96 Okl.Cr. 125, 250 P.2d 55 (1952); Brannon v. State, 94 Okl.Cr. 261, 234 P.2d 934 (1951); and Chandler v. State, 96 Okl.Cr. 344, 255 P.2d 299 (1953), which stand for the proposition that where an Information is fundamentally defective so that it states no crime, such question may be presented for the first time on appeal.

The provisions of the Oklahoma Constitution, Article 2, § 20 of the Bill of Rights, provide:

'In all criminal prosecutions the accused . . . shall be informed of the nature and cause of the accusation against him . . ..'

Under the provisions of 22 O.S.1971, § 401 dealing with the form and requisites of indictment or information, it is provided:

'The indictment or information must contain:

'1. The title of the action, specifying the name of the court to which the indictment or information is presented, and the names of the parties.

'2. A statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.'

And, under 22 O.S.1971, § 402, it is provided:

'The indictment or information must be direct and certain as it regards:

'1. The party charged.

'2. The offense charged.

'3. The particular circumstances of the offense charged, when they are necessary to constitute a complete offense.'

After carefully examining the Informations in the instant case, we are firmly convinced that they are fatally defective for failing to allege the acts constituting the offense of Assault and Battery, as mandated by the foregoing constitutional and statutory provisions of the State of Oklahoma. These provisions require more than is contained in the Informations. Did the Appellee strike the complainants with his fist, kick them, push or shove them down, or what? From reading the Informations we do not know, and the Appellee would not know what acts he must be prepared to meet in the present prosecution and defend against in any subsequent prosecution for the same offense. See, Fish v. State, Okl.Cr., 505...