Fish v. State, A--17513

• Decision Date: 10 January 1973
• Docket Number: No. A--17513,A--17513
• Citation: 1973 OK CR 5,505 P.2d 490
• Parties: Mike FISH, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 490

505 P.2d 490

Mike FISH, Appellant, v. The STATE of Oklahoma, Appellee.

No. A--17513.

Court of Criminal Appeals of Oklahoma.

Jan. 10, 1973.

Rehearing Denied Jan. 26, 1973.

Hubert Hargrave, Wewoka, for appellant.

Larry Derryberry, Atty. Gen., Raymond Naifeh, Asst. Atty. Gen., for appellee.

OPINION

BLISS, Judge:

Appellant, Mike Fish, hereinafter referred to as defendant, was charged, tried, and convicted in the District Court of Seminole County, Oklahoma, for the offense of Burglary in the Second Degree; his punishment was fixed at two (2) years imprisonment in the state penitentiary, and from said judgment and sentence, a timely appeal has been perfected to this Court.

On the 2nd of July, 1971, an information was filed in Seminole County, Oklahoma, against George Cooper, Richard Paul Fairbanks, and Mike Fish, charging these three individuals conjointly with the crime of Burglary in the Second Degree.

The jury was sworn and empaneled on November 8, 1971, and after a recess until the next morning, the trial began. Before calling the first witness, Mr. Gordon R. Melson, District Attorney, read the information and made an opening statement to the jury. Mr. Hargrave, counsel for the defendant, reserved his opening statement and also asked the court for the rule.

Ted Tucker testified that he was the owner and in possession of a house fifteen miles north and one mile east of Wewoka, Oklahoma on July 2, 1971. He testified personal properly was kept at this house and he had been previously burglarized on December 2, 1970. He was present at the house three days before the July, 1971 burglary, and went to the house the evening of July 2, to see if the house was secure. On arriving at the house, be found it had been broken into and vandalized, and that personal property had been stolen therefrom. He further testified no one was present at the house at the time of the burglary. Mr. Tucker called a personal friend, Mr. Rob Pyron, News Editor of the Wewoka Daily Newspaper, who came to the Tucker house, as it existed when Mr. and white photographs of the condition of the Tuker house, as it existed when Mr. Tucker first entered. At the trial Mr. Tucker identified the pictures taken at the home the night of July 2, and stated that they were a fair and accurate representation of its appearance upon his arrival.

Pyron testified to substantially all material facts stated by Mr. Tucker and identified the pictures taken by him at the scene of the crime and stated the pictures were a fair and accurate representation of the appearance of the home at the time he arrived.

Mr. W. C. Merryfield, Sheriff of Seminole County, testified he went to the Tucker home Sunday morning, July 3, 1971, after a call from Mr. Tucker earlier that morning. He stated there was a considerable amount of vandalism and took some more photographs of the condition of the house at that time. Sheriff Merryfield identified photographs he had taken at the scene and stated they were a fair and accurate representation of the appearance of the house upon his investigation. On cross-examination by Mr. Hargrave, the sheriff testified that the remains of the Forty-Niner schoolhouse were located fifteen miles north and one mile east of Wewoka, Oklahoma and Tucker's house was closer to seventeen miles north and one mile east of Wewoka, Oklahoma.

Richard Paul Fairbanks, a co-defendant whose case was severed for separate trial, testified he lived in Wewoka, was nineteen years old, and had known the defendant for approximately five to six years. He testified in substance he was with the defendants Mike Fish and George Cooper on July 2, 1971. Further, he, Fairbanks, Fish, and Cooper drove to the Tucker house and burglarized same, stealing several articles of personal property contained therein. He testified the trio made two trips to remove personal property from the home and that they sold a stereo taken from the house to John Trimble and a television to O. D. Jones. Fairbanks testified there was a division of the proceeds of the goods among himself, Fish, and Cooper. He further identified pictures taken at the scene of the crime as an accurate representation of the house. After the burglary, Fairbanks, Cooper, and Fish hid the balance of the personal property which had been stolen from the house. Fairbanks told Officer Douglas Arnold where the stolen property was hidden and that he was with Officer Arnold when the property was recovered. Fairbanks identified the State's exhibits as the stolen property previously identified by Tucker.

John Trimble and O. D. Jones substantiated Fairbanks' testimony in that they had purchased personal property from Fish, Cooper, and Fairbanks. They identified at trial those items they had purchased.

Mr. Bob Lovelady, Deputy Sheriff of Seminole County, stated he went with Fish to the Trimble home and recovered the stolen stereo.

Douglas Arnold, Undersheriff of Seminole County, stated he participated in the investigation of the burglary. He picked up the stolen television and thereafter arrested Fairbanks.

The State rested and the defense called Paul Mathews, County Assessor of Seminole County, Oklahoma, who gave further testimony as to the proper location of the Tucker home being seventeen miles north and one mile east of the City of Wewoka, Oklahoma, and that the location in the information of fifteen miles north and one mile east of Wewoka, Oklahoma was the location of the remains of the old Forty-Niner schoolhouse.

The final witness was the defendant Fish, who testified in substance to the same facts related by his accomplice, Fairbanks. He admitted his part in the burglary on July 2, 1971, and further testified he was never confused or in doubt at any time as to the location of the Tucker home.

The defendant raises error in four propositions, only two of which we feel merit discussion. First, the trial court erred in overruling defendant's demurrer to the information, and secondly, that the court erred in refusing to give defendant's requested Instructions Number 1 and Number 2.

The defendant claims error in the court overruling his demurrer to the information, which was entered and denied after the jury was sworn but before testimony had been heard. It is noted that counsel for the defendant waived arraignment and preliminary examination, entering a plea of not guilty. Generally, a demurrer should be taken prior to a plea and if one has pleaded to the merits, the plea should be, first, withdrawn and then a demurrer filed. The demurrer's purpose is to attack the information on its face and not in regard to its substance. In the case at bar, the demurrer to the information was untimely submitted and was properly overruled. In support of this finding see Tharpe v. State, Okl.Cr., 358 P.2d 232, where this Court held:

'In White v. State, 4 Okl.Cr. 143, 111 P. 1010, this court set forth the rule that where the defendant enters his plea of not guilty and waits until the jury has been empaneled and sworn, and then for the first time questions the sufficiency of the information by objecting to the...