Gibson v. State

• Decision Date: 15 October 1947
• Docket Number: A-10803.
• Parties: GIBSON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

186 P.2d 667

85 Okla.Crim. 228

GIBSON v. STATE.

No. A-10803.

Court of Criminal Appeals of Oklahoma

Oct. 15, 1947

Rehearing Denied Nov. 26, 1947.

Appeal from District Court, Logan County; Henry W. Hoel, Judge.

Buster Lee Gibson was convicted of burglary in the second degree and he appeals.

Affirmed.

Syllabus by the Court.

1. By a long line of decisions, it has been held that where the information has not been challenged by demurrer or motion to quash, and defendant pleads to the information and goes to trial, any objection to the sufficiency of the information should be overruled, if by any intendment, inference or presumption, it can be sustained.

2. The old common law doctrine of strictly construing criminal law and criminal procedure, and that an indictment or information should be certain to a certain intent in every particular, has long since been repudiated in this State.

3. The recognized rule is that an indictment or information should be reasonably certain as to the offense charged in order that the defendant may not be surprised and may be able to prepare to make his defense, and also enable him to plead a judgment of acquittal or conviction in bar to a subsequent prosecution for the same offense.

4. Where the proof showed that the crime was committed in the town of Coyle, Oklahoma, Criminal Court of Appeals will take judicial knowledge that it was in Logan County.

5. If a witness has testified at a former trial, or at a preliminary hearing, and the defendant had an opportunity to cross-examine him, and when the case comes on for trial again it is satisfactorily proven that said witness is dead, or out of the State, or is insane, or that his whereabouts cannot with due diligence be ascertained, or is sick and unable to testify, the testimony of such witness given upon said former trial, may be proven upon the subsequent trial. And the constitutional provision which guarantees to the defendant the right to be confronted by the witnesses against him, is fully complied with when he has had the right to cross-examine said witnesses at the former trial. 22 O.S.1941 § 13, subd. 3; O.S.1941 Const. Art. II, § 20.

6. Record examined and found to sustain the judgment and sentence of five years in the penitentiary upon conviction of burglary in the second degree.

Owen F Renegar, of Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Hugh J. Adams, Co. Atty., of Guthrie, for defendant in error.

BAREFOOT Presiding Judge.

Defendant, Buster Lee Gibson, was charged in the District Court of Logan County with the crime of burglary in the second degree, was tried, convicted and sentenced to serve a term of five years in the State Penitentiary at McAlester, and has appealed.

For reversal of this case, it is contended:

'1. That the trial court erred in permitting this Plaintiff-in-Error to be tried on a purported information that did not charge a crime against the laws of the State of Oklahoma.

'2. That the trial court, over the objection of Plaintiff-in-Error admitted evidence that was improper and incompetent, irrelevant and highly prejudicial to this Plaintiff-in-Error.

'3. That the verdict and judgment are contrary to law.

'4. That the verdict and judgment are not supported by the evidence and said evidence is insufficient to sustain the allegation of any crime.'

An examination of the record discloses that the defendant did not present a demurrer to the information filed in this case. By a long line of decisions, it has been held that where the information has not been challenged by demurrer or motion to quash, and defendant pleads to the information and goes to trial, any objection to the sufficiency of the information should be overruled if by any intendment, inference or presumption, it can be sustained. Edwards v. State, 5 Okl.Cr. 20, 113 P. 214; Ex parte Spencer, 7 Okl.Cr. 113, 122 P. 557; Brown v. State, 33 Okl.Cr. 217, 242 P. 1065; Chamberlain v. State, 42 Okl.Cr. 410, 276 P. 507; Knight v. State, 48 Okl.Cr. 335, 291 P. 142; Smith v. State, 79 Okl.Cr. 151, 152 P.2d 279.

Tit. 22 O.S.1941 § 410, provides:

'No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.'

In the case of Holleman v. State, 74 Okl.Cr. 258, 125 P.2d 239, 242, the terms of the information were very similar to those in the instant case, and the court there said:

'This court has long adhered to the rule that in construing an information or indictment, it is not necessary to use the exact words set forth in the statute to define a public offense, but that other words conveying the same meaning may be used. That when the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended, the same is sufficient. Bowes v. State, 8 Okl.Cr. 277, 127 P. 883; Price v. State, 9 Okl.Cr. 359, 131 P. 1102; Armour v. State, 72 Okl.Cr. 44, 112 P.2d 1116; Star v. State, 9 Okl.Cr. 210, 131 P. 542; Stine v. State, 43 Okl.Cr. 76, 277 P. 598.'

This opinion by Judge Jones is based upon the reasoning of Judge Furman in the case of Price v. State [9 Okl.Cr. 359, 131 P. 1104], cited therein, in which it is stated:

'Under the old common-law doctrine of strictly construing criminal law and all proceedings in criminal cases, and that an indictment or information should be certain to a certain intent in every particular, the objection now urged to this information would undoubtedly be good. But these doctrines have long since been repudiated in the state of Oklahoma. It is true that an indictment should be reasonably certain as to the offense charged in order that the defendant may not be surprised and may be able to prepare to make his defense, and also to enable him to plead a judgment of acquittal or conviction in bar to a subsequent prosecution for the same offense. This is all that a defendant is in reason and justice entitled to. If an indictment is couched in such language as to enable a person of common understanding to know what is intended, it is all that the law requires.'

The court further said [74 Okl.Cr. 258, 125 P.2d 242]:

'As will be hereinafter pointed out in a review of the evidence, the proof of guilt of the defendant was clearly established and no evidence was offered in his behalf. If we were to sustain the objections made by counsel for defendant to this information, we would attach more importance to theories which are merely shadows than to substance and would elevate forms and ceremonies above justice. While we would not recommend the information in this case as a model to be followed by other county attorneys in prosecutions for burglary, we are of the opinion that when measured by the rules of law hereinabove set forth, the court did not err in overruling the demurrer to the information.'

See also Clark v. State, 63 Okl.Cr. 138, 73 P.2d 481.

The information in the instant case did not mention the town of Coyle, where the crime was committed and in which the building entered was located. But, as above stated, no demurrer was filed, and no question was raised with reference thereto at any time during the trial. There was no showing that defendant or his counsel were in any way misled or prejudiced by the description contained in the information. It was stated in the information that the crime was committed 'at and within the county of Logan, State of Okl., on or about the 24th day of January, A. D. 1946 * * *.' The proof showed it was in the town of Coyle, and the court will take judicial knowledge of the fact that Coyle is located in Logan County.

Under the second assignment of error it is contended that the court erred in permitting to be read to the jury the transcript of the evidence of Dr. N. L. Cornwell which was taken at the preliminary examination; the reason for such contention being that no proper foundation had been shown for its admission, and no diligence shown to secure the attendance of this witness at the trial.

It is revealed by the record that Dr. Cornwell, whose office was entered, testified at the preliminary examination, and his evidence taken down in shorthand, transcribed and filed in the office of the court clerk of Logan County, in the manner prescribed by law. At the time of the trial Dr. Cornwell was out of the State, having gone to Hamilton, Indiana, on account of his health. These facts were established by the evidence. Counsel for defendant at the time of the trial represented him at the preliminary hearing, and had the privilege of cross-examining this witness at the preliminary hearing, and this was a part of the record. The testimony of Dr. Cornwell was with reference to the location and description of his office, and the fact that someone did break and enter his office on the date charged. He did not testify to any facts as to the defendant being the person who broke into and entered his office.

In the late case of Brown v. State, Okl.Cr.App., 164 P.2d 401, 404, the court said:

'If a witness has testified at a former trial, or at a preliminary hearing, and the defendant had an opportunity to cross-examine him, and when the case comes on for trial again it is satisfactorily proven that said witness is dead, or out of the state, or is insane, or that his whereabouts cannot with due diligence be ascertained, or is sick and unable to testify, the testimony of such witness, given upon said former trial, may be proven upon the subsequent...