Ex parte Burnett
| Decision Date | 26 January 1944 |
| Docket Number | A-10406. |
| Citation | 145 P.2d 441,78 Okla.Crim. 147 |
| Parties | Ex parte BURNETT. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. The true test of the sufficiency of an information is not whether it might possibly have been made more certain, but whether it alleges every element of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet.
2. An information charging the crime of robbery should allege that the taking of personal property was against the will of complainant and accomplished by means of force or fear.
3. The general rule is that the writ of habeas corpus may not be used either before or after conviction to test the sufficiency of an indictment or information. Where an indictment or information is merely defective, demurrable, or subject to a motion to quash, or technically insufficient but may be amended to state the crime sought to be charged the person held by process based upon it is not entitled to test the sufficiency of the indictment or information, by habeas corpus. Where, however, the indictment or information is fundamentally defective in substance, so that it cannot be amended to charge a crime in any manner or form or by any intendment, it is void, and a person held by process based on such void charge is entitled to discharge by habeas corpus.
Original proceeding in habeas corpus by Joe Burnett, petitioner, to secure his release from confinement in the State Penitentiary.
Writ denied.
Joe Burnett, in pro. per.
Randell S. Cobb, Atty. Gen., for respondent.
This is an original proceeding in habeas corpus instituted by the petitioner, Joe Burnett, to secure his release from confinement in the State Penitentiary.
The petitioner entered his plea of guilty in the District Court of Payne County to the alleged crime of "armed robbery a second and subsequent offense," and was sentenced to serve ten years in the State Penitentiary where he has since been confined.
The sole ground for seeking discharge by habeas corpus is the contention that the information is fundamentally defective and ambiguous, and insufficient to confer jurisdiction upon the District Court to sentence the petitioner to ten years in the State Penitentiary.
The information is lengthy. After alleging two former convictions, the part of said information complained of charges the petitioner with the following: "That on the 18th day of November 1939, Joe Burnett, then and there being and acting conjointly with one Harry Roberts, did then and there, with the intent, if resisted, to kill or wound one O. R. Dephenbaugh, they, the said Harry Roberts and Joe Burnett so acting together, being then and there armed with dangerous weapons, to-wit: one pistol and one rifle, a more exact description of which is unknown to this affiant, and they, the said Joe Burnett and Harry Roberts, so acting together, did then and there unlawfully and feloniously rob, steal, and take away from the person and the control of him, the said O. R. Dephenbaugh, eight ($8.00) dollars in good and lawful money of the United States of America, one .22 pistol, one .22 rifle, three cans of tobacco, all being of the reasonable value of fifty ($50.00) dollars in good and lawful money of the United States of America, and the same being the personal property of him, the said O. R. Dephenbaugh, said property being so stolen and taken at the time of said assault, and while the said Joe Burnett and Harry Roberts were so armed with such dangerous weapons as aforesaid, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Oklahoma."
It is the contention of petitioner that the information is fatally defective in not alleging that the property taken from the complainant, O. R. Dephenbaugh, was procured through force or fear engendered by the use of firearms had and held in the hands of the defendant.
21 O.S.1941 § 791 defines robbery as follows: "Robbery is a wrongful taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear."
In the case of Cannon v. State, 71 Okl.Cr. 42, 107 P.2d 809, 810, it is stated:
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