Curtis v. State

• Decision Date: 28 April 1948
• Docket Number: A-10786.
• Citation: 193 P.2d 309,86 Okla.Crim. 332
• Parties: CURTIS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

193 P.2d 309

86 Okla.Crim. 332

CURTIS v. STATE.

No. A-10786.

Court of Criminal Appeals of Oklahoma

April 28, 1948

Appeal from District Court, Nowata County; James T. Shipman, Judge.

Mike Curtis was convicted of larceny of domestic animals and as a habitual offender and sentenced to a term of twenty-five (25) years imprisonment in the state penitentiary, and he appeals.

Syllabus by the Court.

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

2. Under the provisions of Title 21 O.S.A. § 23, an act or omission which is made punishable in different ways by different provisions of the code may be punished under either of such provisions but in no case can the accused be punished under more than one. Under such conditions the State may elect under which section the prosecution may be maintained.

3. Ordinarily the introductory paragraph of an information is a mere descriptive label and a wrong name given to the crime in that part of the information is a mere irregularity only and not fatal but where the facts alleged in the information are broad enough to charge an offense defined as a crime in either of two statutes resort will be had to the descriptive label as evidence of an election and where there is no inconsistency in the descriptive label and the charging part of the information or indictment the prosecutor will be held to have clearly indicated an election and will be bound thereby in the prosecution.

4. Instructions of the court in the trial of the case must be based upon the charge as contained in the information or indictment and the plea of the defendant thereto, and the verdict of the jury must be responsive to the issues joined by the information or indictment and the defendant's plea, otherwise the court is without jurisdiction to render judgment thereon.

5. Held, where it appears from both the descriptive label and the charging part of the information or indictment the prosecutor has elected to prosecute under one of several statutes making certain acts criminal, under constitutional provisions, the court is without jurisdiction to submit to the jury by instructions the question of guilt of another crime than that charged in the information, or to impose punishment therefor where such other crime is not contained within the issues as defined and expressed in terms of the election so made by the county attorney.

L. C. Colter, of Nowata, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty Gen., for defendant in error.

BRETT Judge.

The defendant below, Mike Curtis, was charged by original information in words and figures as follows, towit:

'That Paul Vernon, Leroy Drake and Mike Curtis did in said county and state on or about the 16th day of January, 1946, A. D. and prior to the presentment hereof commit the crime of: Grand Larceny In that they wilfully, unlawfully, and feloniously did take, steal and carry away seven (7) domestic animals, to-wit: hogs, of the value of $200.00, the personal property of Emma Hopson, at about one-half mile north of Noxie store, in Nowata County, Oklahoma, with the intent and for the purpose of converting said hogs to their own use and benefit and depriving the said Emma Hopson of the use and benefit thereof.

'Contrary to the form of the Statute and against the peace and dignity of the State. * * *'

And by amended information in words and figures as follows, towit:

'That Paul Vernon, Leroy Drake and Mike Curtis did in said County and State on or about the 16th day of January, 1946, A. D. and prior to the presentment hereof commit the crime of: Grand Larceny, in that they wilfully, unlawfully and feloniously, by fraud and stealth, without the consent and against the will of the owner, did take, steal and carry away seven (7) domestic animals, to-wit: six (6) black Poland China hogs, five of which weighed about 200 to 250 pounds, and one of which weighed about 350 pounds, and one red hog which weighed about 250 pounds, worth and of the value of $200.00, the personal property of Emma Hopson, at about one-half mile north of Noxie store, in Nowata County, Oklahoma, with the felonious and fraudulent intent and purpose on the part of them, the said Paul Vernon, LeRoy Drake and Mike Curtis, to convert said hogs to their own use and benefit and permanently depriving the said Emma Hopson, the owner, of the use and benefit thereof.

'And the county attorney aforesaid, gives the court further to know and be informed that prior to the 16th day of January, 1946, to-wit: the 31st day of August, 1937, the said defendant, Leroy Drake, stood charged with the crime of grand larceny in the District Court of Osage County, Oklahoma, a court having jurisdiction of said offense, and on said 31st day of August, 1937, the said Leroy Drake was adjudged guilty and convicted of said crime so charged against him.

'And the county attorney aforesaid gives the court further to know and be informed that subsequent to the 31st day of August, 1937, and prior to the 16th day of January, 1946, to-wit: on the 27th day of May, 1939, the said defendant, Leroy Drake, stood charged with the crime of larceny of domestic animals in the District Court of Nowata County, Oklahoma, a court having jurisdiction of said offense, and on said 27th day of May, 1939, was adjudged guilty and convicted of said felony so charged against him as aforesaid.

'And the county attorney aforesaid, gives the court further to know and be informed that prior to the 16th day of January, 1946, to-wit: On or about the 7th day of June, 1927, in the District Court of the 5th Judicial District, at Roswell, in the County of Chaves, State of New Mexico, the said defendant, Mike Curtis, stood charged with a felony, to-wit, grand larceny, and on or about said day and date, the said Mike Curtis was adjudged guilty and convicted of a felony on said charge;

'And the county attorney aforesaid, gives the court further to know and be informed that subsequent to the 7th day of June, 1927, and prior to the 16th day of January, 1946, to-wit: on or about the 29th day of November, 1933, the said defendant, Mike Curtis, stood charged with a felony, to-wit: assault with a deadly weapon, in the District Court of the 5th Judicial District of New Mexico, a court having jurisdiction of said offense, sitting at Roswell, in Chaves County, and on or about said 29th day of November, 1933, the said defendant, Mike Curtis, was adjudged to be guilty and convicted of said felony in said court in said State of New Mexico;

'And the county attorney aforesaid, gives the court further to know and be informed that subsequent to the 29th day of November, 1933, and prior to the 16th day of January, 1946, to-wit: on or about the 1st day of August, 1942, the said defendant, Mike Curtis, stood charged with a felony in the District Court of Montgomery County, Kansas, sitting at Independence in said county and state, and on or about the 1st day of August, 1942, the said defendant, Mike Curtis, was adjudged to be guilty and convicted of said felony,

'Contrary to the form of the Statute against the peace and dignity of the State. * * *'

A casual examination of the amended information upon which this case was tried, reveals that it is broad enough in its allegations to allege both the crime of grand larceny and the crime of larceny of domestic animals. Title 21 O.S.A. § 1701 defines larceny as follows, to-wit:

'Larceny is the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof.'

Title 21 O.S.A. § 1704 defines Grand Larceny as follows, to-wit:

'Grand Larceny is larceny committed in either of the following cases:

'1. When the property taken is of value exceeding twenty dollars. * * *'

Title 21 O.S.A. § 1705 fixes the punishment for grand larceny as follows, to-wit:

'Grand larceny is punishable by imprisonment in the penitentiary not exceeding five years.'

It clearly appears in the amended information that the pleader charged all the essential elements of grand larceny by alleging that the taking of the property (in this case the hogs) was accomplished by fraud and stealth and with the intent to deprive Emma Hopson, the owner, of said hogs thereof and by alleging that they were of the value of more than twenty ($20) dollars, in this case to-wit: $200.

Title 21 O.S.A. § 1716 defines larceny of domestic animals in part as follows, to-wit:

'Any person in this State who shall steal any * * * cow, or hog, shall be guilty of a felony and upon conviction shall be punished by confinement in the State Penitentiary for a term of not less than three years, nor more than ten years * * *.'

It clearly appears that the amended information charges all of the essential elements of larceny of domestic animals, to-wit: that the defendant did 'steal (from Emma Hopson) and carry away seven (7) domestic animals, to-wit: Six (6) black Poland China hogs, five of which weighed about 200 to 250 pounds, and one of which weighed about 350 pounds, and one red hog which weighed about 250 pounds * * *.' To this information the defendant demurred and, among other things alleging the information was duplicitous. Thus the objection to the information was properly raised. Moreover, before the introduction of the evidence defendant moved to suppress the evidence on the grounds that said information was duplicitous. Both the said demurrer and the motion to suppress were overruled, to which the defendant excepted.

Upon this state of the record the case was tried. At no stage of the proceedings did the State attempt to prove the value of the property allegedly stolen. Thereafter the evidence was concluded and thereupon the...