Gower v. State, A-11335

• Decision Date: 23 May 1951
• Docket Number: No. A-11335,A-11335
• Citation: 94 Okla.Crim. 184,237 P.2d 162
• Parties: GOWER v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 162

237 P.2d 162

94 Okla.Crim. 184

GOWER v. STATE.

No. A-11335.

Criminal Court of Appeals of Oklahoma.

May 23, 1951.

Rehearing Denied June 14, 1951.

Syllabus by the Court.

1. An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court, where the same can be done without material prejudice to the right of the accused. No amendment shall cause any delay of the trial, unless for good cause shown by affidavit. Tit. 22 O.S.1941 § 304.

2. In burglary prosecution, tool box tray and tools alleged to have been stolen from parked automobile, found in close proximity to where defendant was found sitting in another automobile, constituted a circumstance to be considered by the jury, and admission was not reversible error.

3. A variance in a criminal case is an essential difference between the information and proof, and a veriance is not material unless it is such as might mislead the defense or expose the defendant to the injury of being put twice in jeopardy for the same offense.

4. Instructions examined and found to fairly and correctly state the law applicable to issues.

Walter Lee Gower, plaintiff in error, pro se.

Mac Q. Williamson, Atty. Gen., for defendant in error.

POWELL, Judge.

Walter Lee Gower was convicted in the District Court of Tulsa County of second degree burglary, second offense, and sentenced to serve ten years in the state penitentiary, and has appealed.

The plaintiff in error is now confined in the state penitentiary, serving his sentence, and this appeal is taken by him without the aid or advice of counsel. He filed what he terms a 'supporting brief' on August 16, 1950, and under date of September 26, 1950, filed another brief. The case was assigned for oral argument on October 11, 1950, and no appearance was made on behalf of the defendant. The State has not filed a brief.

Because of the desire of this court to treat liberally any appeal by an inmate of one of our penal institutions who appears without counsel, we have very carefully read and considered defendant's briefs, and the record, which was prepared at the expense of Tulsa County.

Defendant was represented at his trial by able counsel, and the record before us is in good shape. The State had six witnesses, and the defendant did not take the stand, or offer any evidence.

The preliminary information filed in the Court of Common Pleas of Tulsa County charged the defendant with, in the night time, breaking and entering a certain 1935 black Ford coupe with 1949 Oklahoma license No. 2-32820, being parked on the Frisco overpass on Boulder Street in the city of Tulsa, Oklahoma, and being then and there occupied by and in the possession of W. L. Burgin, etc.; and further charged that the defendant therefore, on the 4th day of April, 1939, was convicted of second degree burglary, in case No. 9192, in the District Court of Tulsa County, Oklahoma, and sentenced to serve a term of three years in the State Penitentiary at McAlester, etc.

The preliminary information is dated and was filed in the Court of Common Pleas on May 6, 1949. The transcript filed in the District Court on May 19, 1949, by the judge of the Court of Common Pleas, shows that on May 7, 1949, the defendant was present in court, the information was read, he was advised as to his rights, entered a plea of not guilty, his bond was fixed at $3,000, and preliminary set for May 22, 1940. Under date of May 12, 1949, the record shows a minute reading: 'State given permission to amend information; reporter Morrison; 7 witnesses sworn; state introduces evidence and rest. Defendants demurrer overruled; defendant held to district court for trial on bond of $3000. Comm. Iss.' The records of the District Court show that the information, charging defendant with 'Second degree burglary, second and subsequent offense', was filed in the District Court on May 20, 1949, and charged that defendant did 'in the nighttime, break and enter into a certain 1930 Model A Ford Tudor sedan with 1949 Oklahoma license 2-1919, being parked on the Frisco Overpass on Boulder Avenue, in the City of Tulsa, Oklahoma, and being then and there occupied by and in the possession of W. L. Burgin, * * *.' The charge with reference to the former conviction of defendant was the same as in the preliminary information.

When the case came on for trial, defendant was permitted to withdraw his plea of not guilty, for the purpose of filing a motion to dismiss the information on the ground that defendant had not had a preliminary hearing, and had not waived preliminary upon the charges set forth in the information, and that there was a fatal variance in the charge set forth in the information filed in the Court of Common Pleas and that filed in the District Court; and the order holding defendant for trial in the District Court was at variance with the information filed in the District Court. The motion was by the court overruled, exception allowed, and the defendant reentered his plea of not guilty. When the first witness was called, the defendant objected to the introduction of any evidence on the same grounds, and his objection was also overruled.

W. L. Burgin, an electrician, testified that he parked his 1930, Model A Four-door Ford sedan, Oklahoma tag No. 2-1919, on the viaduct on First and Boulder, Tulsa, about 7:30 on the night of April 29, 1949. That he had a mechanic's metal tool box between the front and back seats of the car, and the tool box contained a removable tray in which were certain tools and supplies. He returned to his car about 11 o'clock and found a note on the windshield reading: 'Come to police station if you miss anything.' That the tray with the tools and merchandise was gone from his tool box, and he recovered the tray and all contents at the police station the next morning. The glass in the doors of his car had previously all been broken, but the doors of the car were closed.

Arthur Fred Fisher, a draftsman for a construction company with Louis A. Simms came out of the place of business of the Banknote Printing Company in the 100 block south Boulder about 10:30 on the night in question, and he testified that they saw a man getting out of a car. They watched the man several minutes, and he went from one car to another, would get in the cars, under the wheel, flash a light around in the car, and then go to another. He finally saw the man get in what he judged to be about a 1930 Model A Ford, saw him flash the light around, and he and Mr. Simms then got in Mr. Simms' car and went to the police station and reported what they had seen. They drove back across the viaduct, and the defendant was sitting in the police car, on the viaduct. He positively identified the defendant. L. A. Simms corroborated Mr. Fisher in every way, stated that he saw the defendant enter three or four cars, and also identified him.

Donald Edwin Underhill, a police officer, testified that he and his partner Don Parrish went to investigate the matter after receiving the report from Mr. Fisher and Mr. Simms, and found the defendant sitting in a black, 1935 Ford coupe. There was a red car jack, and two flashlights an the seat by defendant, and a metal tray from a tool box and containing automotive tools and supplies on the banister of the viaduct, about eight feet away. He testified that there was a 1930 Model A Ford, four-door car parked about six car lengths from the one in which defendant was sitting, with license tag 2-1919. This witness testified that in his opinion the defendant was not drunk, but witness...