Clemons v. State

• Decision Date: 31 December 1912
• Citation: 128 P. 739,8 Okla.Crim. 452,1912 OK CR 428
• Parties: CLEMONS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

128 P. 739

8 Okla.Crim. 452, 1912 OK CR 428

CLEMONS v. STATE.

Court of Criminal Appeals of Oklahoma

December 31, 1912

Syllabus by the Court.

On an information based on section 2307 of the Penal Code, charging the defendant with assault and battery with a certain knife said knife being then and there a deadly weapon, in a manner likely to produce death, and with felonious intent to kill he may properly be convicted of the offense defined by section 2308, of "assault with intent to kill," or the offense defined by section 2337, of "assault with any sharp or dangerous weapon, with intent to do bodily harm," and the court should submit the case to the jury for consideration upon every degree of assault which the evidence in any reasonable view of it suggests.

A verdict finding "the defendant guilty of assault with a deadly weapon as charged in the information" is insufficient as to form, and is too vague and uncertain to support a judgment for the highest degree of the offense charged.

An ordinary pocketknife is not necessarily a deadly weapon, and in this case, it was a question of fact for the jury whether the pocketknife, if they believed one was used, was a deadly weapon.

Appeal from District Court, Muskogee County; R. C. Allen, Judge.

John C Clemons was convicted of assault with a deadly weapon, and appeals. Reversed and remanded.

Edward Curd, Jr., and W. J. Crump, both of Muskogee, for plaintiff in error.

Chas West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and S. A. King, Special Asst. Atty. Gen., of Oklahoma City, for the State.

DOYLE J.

The plaintiff in error was charged, tried, and convicted upon an information, which reads as follows: "In the name and by the authority of the state of Oklahoma. Now comes W. F. Disney, the duly qualified and acting county attorney, in and for Muskogee county, state of Oklahoma, and gives the district court of Muskogee county, state of Oklahoma, to know and be informed, that John C. Clemons did, in Muskogee county, and in the state of Oklahoma, on or about the twenty-fifth day of December, in the year of our Lord, one thousand nine hundred and ten and anterior to the presentment hereof, commit the crime of assault with a deadly weapon in the manner and form as follows, to wit: That the said John C. Clemons in the county and state aforesaid, on the 25th day of December, 1910, did knowingly, willfully, unlawfully, and feloniously make an assault upon one Albert Washington with a certain knife, said knife being then and there a deadly weapon in the hands of the said John C. Clemons, and did then and there with said knife strike, cut, and stab the said Albert Washington in and upon the neck, chest, and body, in a manner reasonably calculated to produce death, with the unlawful and felonious intent then and there to kill the said Albert Washington, contrary to," etc. Upon arraignment the defendant interposed a demurrer, and, the demurrer being overruled, he pleaded not guilty. Upon the trial the jury rendered their verdict as follows: "We the jury, find the defendant, John C. Clemons, guilty of assault with a deadly weapon, as charged in the information, but fail to agree upon the punishment." Motions for a new trial and in arrest of judgment were duly filed and overruled. And on May 23, 1911, judgment was pronounced, and the court sentenced the defendant to imprisonment for a term of 10 years in the penitentiary. An appeal was properly perfected.

The assignments of error relied upon for a reversal of the judgment are as follows: Error in overruling the demurrer to the information and denying the motion in arrest of judgment. That the court erred in not properly instructing the jury as to the law of this case. That the verdict of the jury is contrary to law and to the evidence, and is not sustained by sufficient evidence.

The language of the information is that the defendant did "commit the crime of assault with a deadly weapon." Counsel contend that the word "battery" being left out of the information in the charging part, the information is not direct and certain as to the offense charged, and is not sufficient to charge the defendant with the offense of which he was convicted and sentenced. The omission of the word "battery" might have been serious in the face of a demurrer if the battery had not been charged in the body of the information. The Constitution (section 20, Bill of Rights) and the statute (section 6627, Procedure Criminal) both declare the salutary rule of the common law that in a criminal prosecution the accused shall be informed of the nature and cause of the accusation against him, and that the indictment or information must be direct and certain, that is, that it must set forth the special manner of the whole fact, so that it can be clearly seen what particular offense, and not merely what nature of offense, is intended to be charged.

It will be observed that the act constituting the offense of "assault and battery with a deadly weapon" is clearly and distinctly set forth in the information. The information is also sufficiently direct and certain to charge a violation of the included offenses defined by section 2308 and section 2337 of the Penal Code. The demurrer thereto was therefore properly overruled. The court instructed the jury that the defendant was charged with the offense defined by section 2307 (Snyder's Sts.) of the Penal Code, as follows: "Gentlemen of the jury, in this case the defendant is charged by information with the crime of assault with a deadly weapon. The defendant is charged with having violated the following provision of the Criminal Code of Oklahoma: 'Every person who intentionally and wrongfully commits an assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death, is punishable by imprisonment in the State prison not exceeding ten years.' You are instructed that if you believe from the evidence in this case beyond a reasonable doubt that in the county of Muskogee, and state of Oklahoma, on or about the 25th day of December, 1910, and within three years before the filing of the information herein in court, acting alone or with another or others, the defendant did intentionally and wrongfully strike, cut, and stab one Albert Washington with a certain knife with intent to kill him, the said Washington, or did so cut him in a manner reasonably calculated to produce death, you will be justified in finding the defendant guilty. If upon consideration of all of the evidence, facts, and circumstances in this case you have a reasonable doubt as to the guilt of the defendant, you should resolve that doubt in his favor and acquit him. Objected to by the defendant. Objection overruled. Defendant excepts. R. C. Allen, Judge. You are further instructed that, should you find the defendant guilty, you will declare in your verdict the degree of crime with which you find him guilty, and fix the punishment to be inflicted, provided, however, that, should you be unable to agree upon the punishment to be inflicted, you will so declare in your verdict, in which event the court will assess the punishment. Objected to by the defendant. Objection overruled. Defendant excepts. R. C. Allen, Judge." The court also instructed on the lesser offense of assault and battery as follows: "The court further instructs the jury that if, after consideration of all the evidence, facts, and...