Jackson v. State

• Decision Date: 13 June 1925
• Docket Number: A-4811.
• Citation: 237 P. 129,31 Okla.Crim. 30
• Parties: JACKSON et al. v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

237 P. 129

31 Okla.Crim. 30

JACKSON et al. v. STATE.

No. A-4811.

Court of Criminal Appeals of Oklahoma

June 13, 1925

Syllabus by the Court.

Objections to the sufficiency of an information must be taken by a demurrer (section 2608, Comp. Laws 1921), and can be taken in no other way except that the objection to the jurisdiction of the court over the subject-matter, or that the facts stated do not constitute a public offense, may be taken at the trial under the plea of not guilty and in arrest of judgment (section 2616, Comp. Laws 1921).

Where a defendant does not challenge the sufficiency of the information by a demurrer, every intendment, inference, or presumption will be indulged to sustain the information, and particularly where its sufficiency is first questioned after the verdict, on motion to arrest the judgment.

An information which, construed under the ordinary rules of construction, states all the essential elements of the crime charged sufficiently to enable a person of common understanding to know what is meant, and with sufficient particularity to enable a defendant to prepare for his trial and to plead the judgment in bar, if again informed against for the same offense, is sufficient.

Where no demurrer is filed to an information charging burglary by breaking and entering a railroad car, where the location of the car is given by setting out the village and railroad tracks upon which it is situated, it is not insufficient for failure to particularly describe the car by number and initials or other description.

Appeal from District Court, Creek County; Fred A. Speakman, Judge.

Frank Jackson and Ed Darling, were convicted of burglary in the second degree, and appeal. Affirmed.

R. L Suddath, of Sapulpa, for plaintiffs in error.

George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen for the State.

EDWARDS J.

Plaintiffs in error will be referred to as defendants. From a conviction in the district court of Creek county on a charge of burglary, the defendants appeal. The information charges that they broke and entered a certain freight car on the tracks at Depew, in said county and state, and said burglary was committed with intent to take, steal, and carry away, with intent to convert the said goods, describing them, all of the aggregate value of $740, to their own use and benefit, with intent to permanently deprive the said St. Louis & San Francisco Railroad Company thereof. No demurrer was filed to the information, and no objection to the introduction of evidence made. After conviction, a motion in arrest of judgment was filed. Only two assignments of error are argued in the brief: First. Error in overruling motion for new trial on account of the insufficiency of the evidence. Second. Error in overruling motion in arrest of judgment on account of insufficiency of the information.

In determining the question presented, the latter contention will be considered first. The statute under which the defendants are charged, omitting the parts not pertinent here, is section 2063, Comp. Laws 1921:

"Any person who breaks and enters * * * any * * * railroad car * * * in which any property is kept, with intent to steal therein or commit any felony, is guilty of burglary in the second degree."

The statute further provides (section 2563, Comp. Laws 1921) that an indictment or information is sufficient if, among other requisites, it can be understood therefrom that the offense was committed at some place in the jurisdiction of the court and that 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, and the section following provides that no indictment or information is insufficient by reason of a defect of imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits. Section 2822, Comp. Laws 1921, generally referred to as the harmless error statute, is as follows:

"No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the

improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right."

Here it is argued by defendants that the information is defective in failing to allege the ownership of and fully describe the car burglarized, and that it does not charge the...