Kimbrell v. State

• Citation: 123 P. 1027,7 Okla.Crim. 354,1912 OK CR 181
• Parties: KIMBRELL v. STATE.
• Decision Date: 01 June 1912
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

123 P. 1027

7 Okla.Crim. 354, 1912 OK CR 181

KIMBRELL v. STATE.

Court of Criminal Appeals of Oklahoma

June 1, 1912

Syllabus by the Court.

(a) An information or indictment is bad for duplicity, if it charges more than one offense. De Graff v. State, 2 Okl. Cr. 540, 103 P. 538, and Green v. State, 6 Okl. Cr. 344 118 P. 815, modified.

(b) While a duplicitious information may be amended, yet, if such amendment operates as a surprise to a defendant, reasonable time must be allowed him to prepare for trial.

An instruction that, if the jury finds that the defendant had in his possession intoxicating liquors with the intention of selling the same, they should convict him is erroneous in failing to tell the jury that they must so find from the evidence in the case, beyond a reasonable doubt, before they can convict him.

Appeal from Noble County Court; H. A. St. Clair, Judge.

J. S Kimbrell was convicted of a violation of the prohibitory law and appeals. Reversed, and remanded for new trial.

Henry S. Johnston, of Perry, for appellant.

Smith C. Matson, Asst. Atty. Gen., for the State.

FURMAN P.J.

First. In their brief, counsel for appellant complain of the action of the trial court in overruling the motion of appellant to set aside the information and overruling the demurrer to the information. The information in this case contains two counts. The first count charges the appellant with unlawfully selling one pint of whisky to one George Dailey. The second count charges the appellant with having in his possession whisky with intent to barter, sell, and give away the same. The question presented is as to whether it is permissible for an information or indictment to charge two or more separate and distinct offenses. Whatever the practice may be in other states, this question, under the Constitution and laws of Oklahoma, can have but one answer. Our Constitution declares that a defendant "shall be informed of the nature and cause of the accusation against him and have a copy thereof." See Williams' Const. Okl. § 20, art. 2. This evidently contemplates that an information or indictment shall include but one accusation.

Section 6699, Comp. Laws 1909, is as follows: "The indictment must charge but one offense, but where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment and the accused may be convicted of either offense, and the court or jury trying the cause may find all or either of the persons guilty of either of the offenses charged, and the same offense may be set forth in different forms or degrees under different counts; and where the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count."

It is true that in the case of De Graff v. State, 2 Okl Cr. 540, 103 P. 538, this court expressed the opinion that, where an information or indictment charged more than one offense, the state might elect the count upon which the trial should proceed; but upon more mature reflection we are satisfied that we were wrong in saying that this could be done. If it is permissible to incorporate more than one offense in the same indictment or information, then an indefinite number of offenses might be so incorporated; and when the case was reached for trial the state might dismiss all of the counts in the indictment or information, except as to one offense. The purpose of the Constitution is that a defendant shall be informed as to the specific offense for which he is to be tried, in order that he may prepare for trial It would be a violation of the letter and spirit of our Constitution, and also of our statute, to inform a defendant of a number of different offenses, and require him to prepare for trial on all of them. This would give to the state the right to elect, when the trial began, which count would be pressed against the defendant. This would be a regular ambuscade, and would be a mockery on justice. We are of the opinion that an indictment or information must charge but one offense; and, where more than one offense is charged, it is bad for duplicity, and, upon objection being made to an indictment upon this ground, the case should be dismissed. It is true that a duplicitous information may be amended; but, if such amendment operates as a surprise to a defendant, reasonable time should be allowed him to prepare for trial. To this extent, the ...