Hendricks v. State

• Decision Date: 08 April 1985
• Docket Number: No. F-83-261,F-83-261
• Citation: 698 P.2d 477
• Parties: William Hugh HENDRICKS, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 477

698 P.2d 477

William Hugh HENDRICKS, Appellant, v. STATE of Oklahoma, Appellee.

No. F-83-261.

Court of Criminal Appeals of Oklahoma.

April 8, 1985.

An Appeal from the District Court of Lincoln County; Donald E. Powers, District Judge.

WILLIAM HUGH HENDRICKS was convicted in Lincoln County District Court Case No. CRF-82-44, the Honorable Donald E. Powers, presiding, of Burglary in the Second Degree, After Former Conviction of Two or More Felonies; Assault and Battery With a Dangerous Weapon, After Former Conviction of Two or More Felonies; and Larceny of an Automobile, After Former Conviction of Two or More Felonies. He was sentenced to twenty (20) years in prison; forty (40) years in prison;

fifty-five (55) years in prison; and twenty (20) years in prison, respectively. On appeal, the judgments and sentences for Burglary in the Second Degree, After Former Conviction of Two or More Felonies; Assault and Battery With a Dangerous Weapon, After Former Conviction of Two or More Felonies, and Larceny of an Automobile, After Former Conviction of Two or More Felonies, are AFFIRMED. The judgment for Burglary in the First Degree, After Former Conviction of Two or More Felonies, is modified to Burglary in the Second Degree, After Former Conviction of Two or More Felonies, and the sentence is reduced to twenty (20) years in prison, and as so MODIFIED, the judgment and sentence is AFFIRMED.

E. Alvin Schay, Appellate Public Defender, Robert M. Beck, Special Counsel, Norman, for appellant.

Michael C. Turpen, Atty. Gen., William H. Luker, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

William Hugh Hendricks was convicted of four offenses arising out of the burglary of a Lincoln County residence, and was sentenced under the habitual offender act, 21 O.S.1981, § 51.

On March 10, 1981, Mrs. Bonnie Hester was assaulted in her residence by a burglar, identified at trial as the appellant, upon her return from work during her lunch break. The burglar exited the residence, but returned as Mrs. Hester tried to summon police on her kitchen phone. The burglar subsequently struck the victim over the head with the barrel of a pellet gun owned by her husband, then left in the victim's car with some of her possessions.

The appellant's initial entry into the residence, prior to the victim's arrival, formed the basis for a second degree burglary charge. His reentry as the victim tried to use the telephone resulted in a first degree burglary charge. Appellant was also charged with assaulting the victim with intent to kill and larceny of her automobile.

As his first, second and third assignments of error, appellant challenges his conviction for Burglary in the First Degree. His threshhold contention that the information was insufficient to charge the offense is well taken. The information failed to allege that the breaking occurred in one of the statutory modes. It alleged, in relevant part, that the crime was committed "by entering through an opening in the garage and breaking open the inner door of the said dwelling house." Title 21 O.S.1981, § 1431 provides:

§ 1431. Burglary in First Degree

Every person who breaks into and enters the dwelling house of another, in which there is at the time some human being, with intent to commit some crime therein, either:

1. By forcibly bursting or breaking the wall, or an outer door, window, or shutter of a window of such house or the lock or bolts of such door, or the fastening of such window or shutter; or

2. By breaking in any other manner, being armed with a dangerous weapon or being assisted or aided by one or more confederates then actually present; or

3. By unlocking an outer door by means of false keys or by picking the lock thereof, or by lifting a latch or opening a window, is guilty of burglary in the first degree.

Two conclusions are immediately apparent. First, the allegations of the information do not bring the crime within either of the three subdivisions of § 1431. ¹ Second, the modes of breaking set out in Section 1431 are integral parts of the statutory definition of first degree burglary. Language incorporated in the enacting clause of a statute so as to constitute a material part of the definition or description of the offense must be alleged in the information. Cf. Young v. City of Tulsa, 563 P.2d 156 (Okl.Cr.1977); Wade v. State, 624 P.2d 86 (Okl.Cr.1981); and Groskins v. State, 52 Okl.Cr. 197, 4 P.2d 117 (1931). Where a statute creates and defines an offense, an indictment or information which does not allege all the essential elements constituting the offense is insufficient. Hart v. State, 59 Okl.Cr. 396, 60 P.2d 411 (1936). The information was insufficient. See also, People v. Fellinger, 15 Abb.Pr. 128, 24 How.Pr. 341 (N.Y.S.Ct.1862), affirmed, 26 How.Pr. 599; and State v. Young, 345 Mo. 407, 133 S.W.2d 404 (1939), construing statutes similar to § 1431. ²

The State, citing several recent decisions of this Court, argues that any act of physical force, however slight, by which an obstruction to entry is removed, will in all events constitute a sufficient breaking under Section 1431. See, Sanchez v. State, 665 P.2d 1218 (Okl.Cr.1983); and Gable v. State, 424 P.2d 433 (Okl.Cr.1967). A similar conclusion was reached by the Uniform Jury Instruction Commission. See Commission Comment to OUJI-CR 511. However, the language relied upon was borrowed without sufficient analysis from cases under the second degree burglary statute, and was unnecessary to the decision of those cases; the breakings in each case clearly fell within one or the other of the modes set out in Section 1431. Moreover, where previous cases of this Court incorrectly construe a statutory provision, this Court may correct the error and proceed strictly by the plain and unambiguous intention of the Legislature. See, e.g., Traxler v. State, 96 Okl.Cr. 231, 251 P.2d 815, 838-839 (1953) (opinion on rehearing). The uniform jury instruction, OUJI-CR 511, is deficient in this respect, and trial judges are advised to tailor their instructions to the jury accordingly.

The information was sufficient to charge the lesser included offense of second degree burglary, 21 O.S.1981, § 1435, and the judgment and sentence will be modified accordingly. Cf. Stokes v. State, 86 Okl.Cr. 21, 190 P.2d 838 (1948) (conviction for arson in the first degree based on insufficient information modified to arson in the second degree).

Appellant also contends under the third assignment of error that the judge erred in his instructions to the jury. The third count of the information charged Assault and Battery With Intent to Kill, and appellant was convicted of the lesser included offense of Assault and Battery With a Dangerous Weapon.

Appellant's contention that the judge should have instructed additional lesser offenses under this count is without merit, in light of the uncontradicted evidence that the assault involved a dangerous weapon. The appellant grasped a pellet rifle belonging to the victim's husband by the stock and struck the victim over the head with such force that the barrel was bent and the victim's head "dented." The blow contributed to head wounds requiring forty-two stitches to close.

Since the evidence did not support the reduction of the assault below Assault and Battery With a Dangerous Weapon, we find no error. See, Irvin v. State, 617 P.2d 588 (Okl.Cr.1980) (where there is not evidence to support a lower degree of the crime charged, or an included offense, the court has no right to ask the jury to consider the issue).

The first count of the information charged Burglary in the Second Degree. Appellant contends that the judge should have instructed the jury on the lesser included offense of Illegal Entry, in view of doubt as to whether the initial entry involved an actual breaking of some portion of the exterior of the structure. However, appellant offers no authority that a breaking of the exterior is an element of Second Degree Burglary, and nothing in the statute itself supports such a...