Ex parte Conway

• Citation: 179 P.2d 699,84 Okla.Crim. 118
• Decision Date: 16 April 1947
• Docket Number: A-10817.
• Parties: Ex parte CONWAY.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

179 P.2d 699

84 Okla.Crim. 118

Ex parte CONWAY.

No. A-10817.

Court of Criminal Appeals of Oklahoma

April 16, 1947

Original proceeding in the matter of the petition of Henry W. Conway for a writ of habeas corpus to secure petitioner's release from the state penitentiary. On demurrer by state to petition.

Demurrer sustained and petition dismissed.

Syllabus by the Court.

1. 'An information may be amended after plea on order of court where the same can be done without material prejudice to the rights of the defendant.' Title 22 O.S.A. 1941 § 304.

2. Where the county attorney in drawing the information labeled the offense 'First Degree Forgery,' although the charging part thereof alleged forgery of a check, defined by Title 21 O.S.A., § 1577 as 'Second Degree Forgery,' and the court, before trial, permitted amendment by interlineation, changing the designation of the crime from 'First' to 'Second' degree forgery, such amendment was proper, as one of form only.

3. Where an information charging a felony is amended, and the charge in the amended information is substantially the same as the charge in the preliminary complaint before the committing magistrate, the contention that accused should have a right to preliminary hearing on the amended information is untenable.

4. Held, record examined and finding no prejudice to the petitioner's right, the demurrer of the State to the petition for writ of habeas corpus is sustained and the petition dismissed.

Woodrow George, of Ardmore, for petitioner.

Mac Q Williamson, Atty Gen., and Sam H. Lattimore, Asst. Atty Gen., for respondent R. B. Conner, Warden.

BRETT, Judge.

Henry W. Conway was tried and convicted of the offense of 'Second Degree Forgery' in the district court of Carter County, Oklahoma, on May 11, 1946, and was sentenced to serve seven (7) years in the penitentiary. He now seeks his release from prison in this proceeding, by petition for writ of habeas corpus.

The preliminary complaint, filed before the committing magistrate, alleged in the descriptive label and the charging part as follows, to wit:

'* * * on the 20th day of February, 1946, Henry W. Conway alias * * *, did commit the crime of Forgery--First Degree, in the manner and form as follows, to wit:

"That Henry W. Conway, alias Norman R. Smith, in the county and state aforesaid, on the day and year aforesaid, did, wilfully, unlawfully, fraudulently, falsely and feloniously, make and forge a certain instrument in writing, the same purporting to be the act and deed of one R. B. Brooks, and purporting to convey the rights and property of the said R. B. Brooks, and to effect the said R. B. Brooks in the property therein described, said instrument in writing, a check, purporting to be the act and deed of R. B. Brooks, with the unlawful, wrongful, fraudulent and felonious intent on the part of him, the said Henry W. Conway, alias Norman R. Smith, then and there to cheat and defraud and injure the said G. M. Cunningham, said check and instrument in writing being in words and figures as follows, to wit:

First National Bank

No. 1806

Ardmore, Oklahoma, Feb. 20, 1946

Pay to Norman Smith Or Bearer $18.50

Eighteen Dollars and 50/100 ..... Dollars

No Account

R. B. Brooks

Endorsed on back as follows:

Norman Smith

312 E. Main

contrary to the form of the Statute in such cases, made and provided, and against the peace and dignity of the State of Oklahoma."

Before the committing magistrate, the petitioner waived preliminary hearing and was bound over to district court.

In the district court, the petitioner was charged by information the descriptive label and the charging part as amended alleged as follows, to wit:

'* * * on or about the 20th day of February, * * * One Thousand, Nine Hundred and Forty-six, * * *, commit the crime of Forgery--Second Degree (Interlineation) in the manner and form as follows, to wit:

"That Henry W. Conway, alias Norman R. Smith, in the county and state aforesaid, on the day and year aforesaid, did, wilfully, unlawfully, fraudulently, falsely and feloniously, make and forge a certain instrument in writing, the same purporting to be the act and deed of one R. B. Brooks, and purporting to convey and rights and property of the said R. B. Brooks, and to effect the said R. B. Brooks in the property described therein, said instrument in writing, a check, purporting to be the act and deed of R. B. Brooks, with the unlawful, wrongful, fraudulent and felonious intent then and there on the part of him, the said Henry W. Conway, alias Norman R. Smith, to cheat and defraud and injure the said G. M. Cunninghan, said check and instrument in writing being in words and figures as follows, to wit:

First National Bank

No. 1806

Ardmore, Oklahoma, Feb. 20, 1946

Pay to Norman Smith or Bearer $18.50

Eighteen Dollars and 50/100 ..... Dollars

No. acct.

R. B. Brooks Endorsed on back as follows:

Norman Smith,

312 E. Main

contrary to the form of the Statutes, in such cases made and provided, and against the peace and dignity of the State."

The only difference in the preliminary complaint, the information originally filed, and the amended information, is that the word 'First' was stricken and the word 'Second' was substituted, by interlineation, therefor, in the descriptive label. This offense was predicated upon the provisions of § 1577, Title 21 O.S.A., as follows, to wit:

§ 1577. 'Notes, checks, bills, drafts--Sale, exchange or delivery.----

'Every person who sells, exchanges or delivers for any consideration any forged or counterfeited promissory note, check, bill, draft, or other evidence of debt, or engagement for the payment of money absolutely, or upon any contingency, knowing the same to be forged or counterfeited, with intent to have the same uttered or passed, or who offers any such note or other instrument for sale, exchange or delivery for any consideration, with the like knowledge and intent, or who receives any such note or other instrument upon a sale, exchange or delivery for any consideration with the like knowledge and intent, is guilty of forgery in the second degree. R.L. 1910, § 2629.'

The facts as disclosed by the record show the forged check was presented to Mr. G. M. Cunningham, in exchange for merchandise and cash, in the amount of $11.18. The record brings this case within the foregoing statute and the rather late case of Dickerson v. State, 74 Okl.Cr. 229, 124 P.2d 750, construing the same, covering 'the selling, exchange, or delivery for a consideration, of a forged check,' and also making it an offense for one 'to offer for sale, exchange, or delivery, for any consideration, such forged check.'

The petitioner contends that the court was without jurisdiction to make and enter the judgment and sentence herein. This contention is based upon the theory that he was originally charged in the information with the offense of 'First Degree Forgery' and after the court overruled the defendant's demurrer to the information the State was permitted to amend by interlineation, reducing the charge to 'Second Degree Forgery' by striking the word 'First' and substituting the word 'Second'; that thereby he was compelled to answer to a different charge than the one with which he was originally charged. The petitioner does not contend nor was any change made in the body or substance of the information. The record shows the only change that was made was in the descriptive label from 'First' to 'Second' degree forgery. He further contends that he was compelled to defend said charge over his objection, without ever having waived a preliminary examination on the charge contained in said amended information. To these contentions of the petitioner, the State filed a demurrer. No other questions are raised by the record, the petition, or the demurrer.

Under the provisions of § 304, Title 22, O.S.A., an information may be amended after plea or on the order of the court where the same can be done without material prejudice to the rights of the defendant. The forgoing amendment, as complained of, was made with the permission of the court after the demurrer of the defendant to the information was overruled and before the case proceeded to trial. In Butler v. State, 78 Okl.Cr. 133, 145 P.2d 215, 216, this court said:

'We have often held that an information may be amended in matters of either form or substance when it can be done without prejudice to the rights of the accused.'

Also, Stephens v. State, 73 Okl.Cr. 349, 121 P.2d 326, wherein this court laid down the same rule in interpreting the foregoing statute. Also, Herren v. State, 72 Okl.Cr. 254, 115 P.2d 258; Ward v. State, 34 Okl.Cr. 296, 246 P. 664; Hammons v. State, 47 Okl.Cr. 297, 298 P. 1076; Little v. State, 21 Okl.Cr. 1, 204 P. 305. In Thompson v. State, 52 Okl.Cr. 139, 3 P.2d 251, construing the foregoing statute, and decisively in point with the case at bar, this court said:

'The county attorney in drawing the information labeled the offense 'first' degree rape, although the charging part of the information alleges only second degree rape. When the motion to quash on this ground was presented, the court permitted the county attorney to change the designation of the crime from 'first' to 'second' degree rape, the word 'first' being stricken out and the word 'second' inserted. Under section 2512, Comp.Stat. 1921, [22 O.S. 1941 § 304], the amendment was proper, as one of form only.'

As was said in Lowe et al. v. State, 7 Okl.Cr. 32, 121 P. 793, 794:

'In this case, however, the amendment complained of did not affect the validity of the information in any sense. It charged the same offense before as it did after the amendment.'

The same may be said of the amended information in the case at bar. In ...