Clark v. State
| Decision Date | 14 May 1915 |
| Docket Number | A-2089. |
| Citation | 148 P. 676,11 Okla.Crim. 494,1915 OK CR 43 |
| Parties | CLARK v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
The constitutional right of a defendant to be informed of the nature and cause of the accusation against him entitles him to insist at the outset, by demurrer and, after verdict, by motion in arrest of judgment, that the indictment or information shall apprise him of the crime charged with such reasonable certainty that he can make his defense. The question of the sufficiency of the indictment or information must usually be called in question by a motion to set aside or by demurrer before the trial. If the indictment or information states no offense within the jurisdiction of the court, that fact is fatal at any stage of the proceedings and is not waived by a failure to take advantage thereof by motion or demurrer.
The information charged that the defendant "did then and there wrongfully and unlawfully, with the intent to do bodily harm, and without justifiable or excusable cause, commit an assault upon the person of Wah-kah-tah-he-um-pah by unlawfully and feloniously striking and beating the said Wah-kah-tah-he-um-pah with a dangerus weapon, to wit, a long rod or bar of steel or iron." Held, that the information was sufficient to charge the defendant with assault with a dangerous weapon with intent to do bodily harm as against an objection taken to the introduction of evidence, because the information did not charge an offense within the jurisdiction of the court.
Appeal from District Court, Osage County; R. H. Hudson, Judge.
Peter Clark was convicted of felonious assault, and appeals. Affirmed.
Leahy & MacDonald, of Pawhuska, for plaintiff in error.
Chas West, Atty. Gen., and C.J. Davenport, Asst. Atty. Gen., for the State.
Plaintiff in error, Peter Clark, was convicted of assault with intent to do bodily harm. The jury were unable to agree upon the punishment. Motions for new trial and in arrest of judgment were overruled, and on the 8th day of April, 1913, judgment was rendered, and he was sentenced to imprisonment in the penitentiary for a period of one year and one day from the time of his delivery to the warden. From this judgment he appeals.
It appears from the evidence that the prosecuting witness Wah-kah-tah-he-um-pah had married the old father of Peter Clark, and lived near the home of Hlu-ho-wah-tah, a Big Bear Indian. On the night of July 7th a baby was born to defendant and his wife, who was at the home of Hlu-ho-wah-tah. The prosecuting witness went to this place to see the new-born baby and was sitting out near a tent on the ground. Defendant came riding upon a horse belonging to Wah-kah-tah-he-um-pah. She censured him for riding her horse. The defendant abused her for leaving his father at home sick without preparing an evening meal for him. She says the defendant then said "I am going to whip you." He dismounted, picked up a long rod of steel or iron (which was exhibited to the jury), and with it he struck her across the back, rendering her unconscious, and for which she received medical attention. The defendant admitted striking her with the rod and says he did so because he was mad at her; that he did not mean to kill her, and he denies making the statement that he was going to whip her.
The sole contention made for a reversal of the judgment is that the information does not allege facts showing that the district court of Osage county had jurisdiction, and the basis of this complaint is that the information does not allege facts sufficient to show the commission of a felony.
Alleging time and venue, the information charges:
"The said defendant, Peter Clark, then and there being did then and there wrongfully and unlawfully, with the intent to do bodily harm and without justifiable or excusable cause, commit an assault upon the person of Wah-kah-tah-he-um-pah, by unlawfully and feloniously striking and beating the said Wah-kah-tah-he-um-pah with a dangerous weapon, to wit, a long rod or bar of steel or iron, contrary to," etc.
It appears from the record that on the 4th day of November 1912, the defendant, present in person and by his attorneys, waived time to plead and entered a plea of not guilty, and the case was set for trial November 27, 1912. Later the case was continued for the term by agreement. The case came on for trial March 12, 1913. No motion to quash or set aside nor demurrer to the information was filed in the case. After the jury had been...
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