Fields v. State, A-12548

• Decision Date: 26 February 1958
• Docket Number: No. A-12548,A-12548
• Citation: 322 P.2d 431
• Parties: Elmer Dean FIELDS, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 431

322 P.2d 431

Elmer Dean FIELDS, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12548.

Criminal Court of Appeals of Oklahoma.

Feb. 26, 1958.

Syllabus by the Court

1. The indictment or information must charge but one offense, but where the offense may be committed by use of different means, the means may be alleged in the alternative in the same count. 22 O.S.1951 § 404.

2. An information that informs an accused of the offense with which he is charged with such particularity as to enable him to prepare for his trial, and so defines and identifies the offense that, if convicted or acquitted, he will be able to defend himself against any subsequent prosecution for the same offense, is sufficient.

3. One may be convicted upon direct or circumstantial evidence, or both. Written admissions made by an accused constitute direct evidence, and though he sought to repudiate the writing, where the evidence on the part of the State and the accused is conflicting and different inferences may be drawn therefrom, it is within the province of the jury to weigh the evidence and determine the facts.

4. The function of the Criminal Court of Appeals is limited to ascertaining whether there is a basis in the evidence, on which the jury can reasonably conclude that accused is guilty as charged.

5. The jurors sworn to try an indictment or information, may, at any time before the submission of the cause to the jury, in the discretion of the court, be permitted to separate, or to be kept in charge of proper officers. 22 O.S.A. § 853. The court's discretion herein found not to have been abused.

6. Where the jury has returned its verdict of guilty into the court, including in said verdict the statement that the punishment cannot be agreed upon, and such verdict is announced in open court, it is then too late for the defendant to request that the jury assess the punishment.

Appeal from the District Court of Washinton County; R. L. Hert, Judge.

Elmer Dean Fields was convicted of the crime of manslaughter in the first degree, and appeals. Modified and affirmed.

John W. Tillman, Fred A. Tillman, Pawhuska, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.

POWELL, Judge.

Elmer Dean Fields, plaintiff in error, hereinafter referred to as defendant, was charged by information in the district court of Washington County with the crime of murder (21 O.S.1951 § 701). He was tried before a jury that the county attorney did not qualify to assess the extreme penalty. The jury found defendant guilty of the included offense of manslaughter in the first degree (21 O.S.1951 § 711) but being unable to agree upon the penalty left that to the court, who assessed punishment at life imprisonment in the State Penitentiary at McAlester. 21 O.S.1951 § 715.

A number of errors are alleged in petition in error and brief, and will be treated in the order presented, except as to the sufficiency of the evidence. We shall first consider the information, the pertinent part of which reads:

'* * * that Elmer Dean Fields did, in Washington County, and in the State of Oklahoma, on or about the 16th day of February in the year of our Lord, One Thousand Nine Hundred and Fifty-seven and anterior to the presentment hereof, commit the crime of Murder in the manner and form as follows:

'That the said Elmer Dean Fields, hereinafter referred to as Dean Fields, within the body of the county of Washington, State of Oklahoma, then and there being, did, then and there, knowingly wilfully, wrongfully, unlawfully, feloniously, without authority of law, and with the premeditated design to effect the death of one Elmer A. Fields, and prior to the filing hereof, make an assault and battery upon the said Elmer A. Fields, with a certain dangerous and deadly weapon used as a club, to-wit: a 16-gauge shotgun then and there had and held in the hands of the said Dean Fields, and did, then and there, with said weapon so had and held in his hands, unlawfully, wilfully, wrongfully, feloniously and without authority of law and with the premeditated design to effect the death of the said Elmer A. Fields, strike the said Elmer A. Fields, in and upon the head with said weapon, and did, then and there and thereby, inflict mortal wounds upon the said Elmer A. Fields, and thereafter the said Dean Fields did, then and there, knowingly, wilfully, wrongfully, unlawfully, feloniously and without authority of law and with the premeditated design to effect the death of the said Elmer A. Fields, maliciously set fire to and burn the said Elmer A. Fields and the dwelling house in which he lay languishing, inflicting certain mortal burns in and upon the said Elmer A. Fields, of which said mortal burns or which said mortal wounds, or the combination thereof, the said Elmer A. Fields did, then and there, on the 16th day of February, 1957, die, as was intended by the said Dean Fields he should do, with the unlawful, wrongful and felonious intent then and there on the part of him, the said Dean Fields, to kill the said Elmer A. Fields, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State.'

Counsel say that the information is defective in two respects: The first being that the information is duplicitous in that it charges more than one offense. On the other hand, the Attorney General urges that the information charges the single offense of murder.

Of course, as urged by defendant, this court has held that an information must charge but one offense. Kimbrell v. State, 7 Okl.Cr. 354, 123 P. 1027; Tucker v. State, 8 Okl.Cr. 428, 128 P. 313; Flood v. State, 23 Okl.Cr. 398, 215 P. 215. These cases were cited by the defendant and there is nothing wrong with the principle of law stated. But as examination of the cases discloses fact situations far different from the within case.

In Kimbrell, the information contained two counts. The first charged the accused with unlawfully selling one pint of whiskey to one George Dailey; the second count charged the accused with having in his possession whiskey with intent to barter, sell and give away the same. Thus two separate and distinct offenses were charged.

In the Tucker case, the information charged the accused with stealing five hogs from Walter Simpson, and also with stealing nine hogs from Lena Nelson, and it was held that the information was bad for duplicity in that it alleged two separate and distinct ownerships of property without alleging that the property of the two owners was stolen at the same time, and by the same act or transaction.

In the Flood case the information contained two counts. The second count was held to charge two different offenses: assault with intent to rob, following by repugnant allegations, and a charge of assault with intent to steal, two separate and distinct offenses.

The statute (22 O.S.1951 § 404) states that the indictment or information must charge but one offense, but goes on to provide: 'And where the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count.'

This clause or provision of the statute has been construed in a number of cases.

In Elliott v. State, 4 Okl.Cr. 224, 111 P. 820, 140 Am.St.Rep. 683, the accused was charged by information with manslaughter in the first degree. Accused was alleged to have struck the deceased upon the head, breast and left side with his fist, and with his feet 'stomped and crushed' Isaac Carlico, and by said stamping, etc., he died. The proof on the other hand showed that deceased was holding a horse with one arm through the reins as he engaged in a fist fight with the accused; that the horse reared and that the deceased fell and that his head was crushed by the feet of the horse. The case was reversed for new trial. The court said:

'Whenever there is doubt or uncertainty as to the means by which death was effected, all the different probable means should be alleged, either in separate counts in the indictment or information, or in the alternative in the same count, so as to provide against contingencies in the proof and prevent a variance.'

In Bruster v. State, 40 Okl.Cr. 25, 266 P. 486, the court held, paragraph two of the syllabus:

'Where an offense may be committed by the use of different means, the means may be charged in the alternative in the same count. Where an information charging murder alleges that the homicide was committed by shooting with a pistol and by striking with an ax, the information is not duplicitous, and the state is not required to elect upon which of the means charged it will rely, and proof of either or both will sustain the allegation as to the means used.'

See Bowman v. State, 82 Okl.Cr. 199, 167 P.2d 663, in which the information alleged in a single count two or more different means or acts constitution the offense charged, growing out of the operation of an automobile.

See Pruitt v. State, Okl.Cr., 290 P.2d 424, where the information charging murder alleged the homicide was committed by gunshot, and by striking with a blunt instrument and where it was held that the State was not required to elect upon which of the means charged it would rely, and that proof of either or both would sustain the allegation as to the means used.

See also in this connection: State v. Rizor, 353 Mo. 368, 182 S.W.2d 525; 40 C.J.S. Homicide § 150, pp. 1041, 1042; 26 Am.Jur. § 266, p. 339; 27 Am.Jur. § 66, p. 629.

The second contention is that the information is so indefinite in its terms that it is impossible for the defendant to know the offense with which he is charged. There is a rule for testing the sufficiency of an information, which is stated in Argo v. State, 88 Okl.Cr. 107, 200 P.2d 449, 450, as follows:

'An information that informs an accused of the offense with which he is charged with such particularity as to enable him to prepare for...