Combest v. State
| Citation | 299 P. 920,51 Okla.Crim. 38 |
| Decision Date | 23 May 1931 |
| Docket Number | A-7705. |
| Parties | COMBEST v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Information charging offense committed on same day that information was filed held sufficient, where allegations as to commission of offense were in past tense (Comp. St. 1921, § 2563, subds. 5, 6).
(a) The essentials of an information are fixed and defined by section 2563, Comp. St. 1921.
(b) The information must be such that it can be understood therefrom that the offense was committed at some time prior to the filing of the information.
(c) Where an offense is charged to have been committed on the same day that the information is filed, but the allegations of the commission of the offense are in the past tense and so framed that a person of common understanding would know that the acts alleged were committed prior to the filing of the information, it is sufficient.
Statement of defendant's wife concerning ownership of whisky and intent with which it was kept was inadmissible, as testimony of incompetent witness and as hearsay (Comp. St. 1921, § 2699).
Under the provisions of section 2699, Comp. Stat. 1921, a wife cannot testify against her husband, and the statement of the wife of the accused concerning the ownership and the intent with which the whisky in question was kept, was inadmissible both as that of an incompetent witness and as hearsay.
Search of automobile upon mere suspicion without warrant is unlawful and evidence obtained thereby is inadmissible.
Search of automobile without a warrant and upon mere suspicion is unlawful, and evidence obtained thereby is inadmissible.
Conviction will not be reversed for error in admitting evidence unless miscarriage of justice or substantial violation of accused's rights has resulted.
Conviction will not be reversed for erroneous admission of evidence unless it appears from the entire record there has been miscarriage of justice or substantial violation of some constitutional or statutory right of accused.
Additional Syllabus by Editorial Staff.
Admission of incompetent evidence, where not warranting reversal held to call for modification by reducing punishment to minimum (Comp. St. 1921, § 2822).
Appeal from County Court, Oklahoma County; C. C. Christison, Judge.
O. C Combest was convicted of having the unlawful possession of intoxicating liquor, and he appeals. Modified and affirmed.
Sam S. Gill, of Oklahoma City, for plaintiff in error.
J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county of having the unlawful possession of intoxicating liquor and was sentenced to pay a fine of $500 and to serve six months in the county jail.
At the time charged, certain officers with a search warrant went to defendant's residence. They first searched an automobile setting in front of the house and in it found four gallons of whisky. They then searched the house and found a half-gallon of whisky concealed in a cupboard. About this time defendant came into the house and stated to the officers that the whisky belonged to him; that his wife did not have anything to do with it, and further said: "I am handling whisky but not in the amount you think." Over objection the state was permitted to prove that defendant's wife in his presence said in substance that the whisky belonged to defendant and she was trying to get him to quit selling it. Defendant did not take the stand and offered no testimony.
Complaint is made that the information is insufficient in failing to allege that the offense was committed prior to the filing of the information. The information alleges the offense was committed on June 26, 1929. the same day the information was filed. Section 2563, Comp. Stat. 1921, sets out the essentials of an indictment or information. In subdivision 5 it is provided the indictment or information is sufficient if it can be understood therefrom "that the offense was committed at some time prior to the time of filing the indictment or information." In subdivision 6, Ibid, it is provided the information is sufficient if " *** the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended." This court, in Turnage v. State, 40 Okl. Cr. 180, 267 P. 1038, in substance held that where an offense is alleged to have been committed on the same day the information is sworn to and filed, the information should contain the allegation that the offense was committed anterior to the filing of the information. That...
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