Miller v. State, No. A-12109

CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
Writing for the CourtJONES
Citation281 P.2d 441
PartiesBernard Phillip MILLER, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.
Docket NumberNo. A-12109
Decision Date16 March 1955

Page 441

281 P.2d 441
Bernard Phillip MILLER, Plaintiff in Error,
v.
STATE of Oklahoma, Defendant in Error.
No. A-12109.
Criminal Court of Appeals of Oklahoma.
March 16, 1955.

Page 442

Syllabus by the Court.

1. The caption to the indictment does not control in determining the nature of the offense allegedly charged, but the words of the indictment must be considered in the light in which they are used to determine whether an offense is charged.

2. 1953 amendment to Uniform Narcotic Drug Act, 63 O.S.1953 Supp. § 420(b), imposing punishment for the commission of certain acts is sufficient to make such acts a crime under the Uniform Narcotic Drug Act without any express provision of the 1953 amendment declaring such acts to be a crime.

3. It is the duty of the courts in construing a statute to ascertain legislative intent. If the language be clear, it is conclusive. When the language of an act is dubious, the court in construing it will consider the intent of the law.

4. The statutes governing the selecting, summoning and impaneling grand juries are directory and not mandatory, and a substantial compliance with the statutes is all that is necessary.

5. Failure of court to impanel a jury to try the issue of the present sanity of the accused was not error where there was nothing before the court to indicate accused was of unsound mind at the time the accused appeared with his counsel and entered a plea of guilty to the indictment.

6. Sentence of 15 years imprisonment in the penitentiary on a plea of guilty to a charge of administering narcotic drugs to a minor child 4 years of age was not excessive where there was no evidence introduced at the time sentence was pronounced in mitigation of the offense.

Appeal from the District Court of Oklahoma County; Wm. L. Fogg, Trial Judge.

Bernard Phillip Miller plead guilty in the District Court of Oklahoma County to a charge of furnishing narcotics to a female person under the age of 21 years, and was sentenced to serve a term of 15 years in the penitentiary. Affirmed.

Stuart H. Russell, Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., Granville Scanland, County Atty., Nathan Sherman, Asst. County Atty., Oklahoma City, for defendant in error.

JONES, Presiding Judge.

This is an appeal by Bernard Phillip Miller from a sentence of 15 years imprisonment in the penitentiary imposed after a plea of guilty to an indictment filed in the District Court of Oklahoma County which charged the offense according to the caption of the indictment of 'furnishing narcotics to a female person under the age of 21 years.'

Several assignments of error are presented in the brief of the defendant. After careful consideration of each of them, we have come to the conclusion that only two of them are of sufficient merit to require extended discussion.

These two propositions are as follows:

1. The indictment was insufficient to charge an offense under the laws of the State of Oklahoma.

2. The indictment was insufficient to confer jurisdiction on the trial court to sentence the accused to 15 years imprisonment in the penitentiary.

These assignments of error will be considered together and involve a consideration of the Uniform Narcotic Drug Act of 1935 with the 1953 amendment to said act. 63 O.S.1951 §§ 401-424, 63 O.S.Supp. §§ 401, 401.1, 420.

Skipping the formal preliminaries, the indictment against the accused reads:

'Bernard Phillip Miller whose more full and correct name is to your Grand Jury unknown, then and there being,

Page 443

did then and there willfully, unlawfully and feloniously commit the crime of furnishing narcotics to a female person under the age of 21 years in the manner and form as follows, to-wit:

'That is to say, the said defendant, in the county and state aforesaid, and on the day and year aforesaid, then and there being, did then and there willfully, unlawfully and feloniously prescribe, administer, furnish, give and deliver a certain narcotic drug, to-wit: morphine sulphate to Lou Ann Johnson, a female person 4 years of age and under the age of 21 years;

contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Oklahoma.'

Before the 1953 amendment to the Uniform Narcotic Drug Act the only statute creating and defining an offense was Tit. 63 O.S.1951 § 402 which provides:

'It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized in this Act.'

Nowhere in the Uniform Narcotic Drug Act is there any definitive statute which makes it a crime to furnish, give or deliver narcotic drugs unless the amendment to the penal section of the statute which was adopted in 1953 had the effect of making such acts offenses which had not theretofore been classified as criminal. Subsection (b) of the penal section of the statute after the amendment in 1953 reads:

'Whoever violates any provision of this Act, if such violation consists in unlawfully selling, furnishing, giving, delivering or exchanging any narcotic drug, contrary to the provisions of this Act, to a person, male or female, who is under twenty-one (21) years of age, shall be punished by imprisonment in the penitentiary for not more than twenty (20) years; and, upon a second, or subsequent conviction, such offender shall be punished by imprisonment in the penitentiary for any term of years, not less than five (5) years, and up to and including imprisonment for life.' Tit. 63 O.S.1953 Supp. § 420(b).

The basic principle argued by the accused in support of his two assignments of error is that the amendment to the penal section of the statute did not have the effect of creating and defining an offense; that the only acts forbidden are those set forth in 63 O.S.1951 § 402, supra, and none of the forbidden acts apply to the furnishing, giving or delivering of narcotic drugs to any person.

Although the caption placed on the indictment by the county attorney describes the crime as 'furnishing narcotics,' it is established law that the caption to the indictment does not control in determining the nature of the offense allegedly charged but the words stated in the body of the indictment must be considered in the light in which they are used to determine whether they charge an offense. Shiever v. State, 92 Okl.Cr. 239, 222 P.2d 530; Wilson v. State, 89 Okl.Cr. 421, 209 P.2d 512, 212 P.2d 144; Bristow v. State, 86 Okl.Cr. 97, 189 P.2d 629; Hulsey v. State, 86 Okl.Cr. 273, 192 P.2d 301. In Shiever v. State, supra [92 Okl.Cr. 239, 222 P.2d 531], it is held:

'The introductory paragraph of an information is ordinarily equivalent to a mere descriptive label, and a wrong name given to the crime in that part of an information is an irregularity only and not fatal. The character of the offense must be determined by a consideration of the language contained in the charging part of the information.'

The indictment uses five descriptive...

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7 practice notes
  • Practice and procedure: Patent and trademark cases rules of practice; representation of others before Patent and Trademark Office,
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...Miller, 688 Off. Gaz. 1 (Nov. 2, 1954) (excluding attorney from USPTO following conviction and incarceration, Miller v. State (Oklahoma), 281 P.2d 441 (Crim. App. Okla. 1955)). A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indiffere......
  • Part II
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...Miller, 688 Off. Gaz. 1 (Nov. 2, 1954) (excluding attorney from USPTO following conviction and incarceration, Miller v. State (Oklahoma), 281 P.2d 441 (Crim. App. Okla. 1955)). A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indiffere......
  • Walker v. State, 4 Div. 55
    • United States
    • Alabama Court of Criminal Appeals
    • November 2, 1982
    ...P.2d 817, 819 (1972); Baker v. Superior Court of Los Angeles County, 24 Cal.App.3d 124, 100 Cal.Rptr. 771, 772 (1972); Miller v. State, 281 P.2d 441, 445 (Okl.Cr.App.1955). The ordinary meaning of "furnish" is to provide or supply. 17A Words and Phrases, "Furnish" The meaning of furnish as ......
  • People v. Gaither, Cr. 6575
    • United States
    • California Court of Appeals
    • September 14, 1959
    ...defendant would not have committed a violation of section 216 (see State v. Stapp, 246 Mo. 338, 151 S.W. 971; Miller v. State, Okl.Cr., 281 P.2d 441; Leary v. State, 14 Gal.App. 797, 82 S.E. 471), although he would have been guilty of an attempt to violate 'Administer' in the sense intended......
  • Request a trial to view additional results
5 cases
  • Walker v. State, 4 Div. 55
    • United States
    • Alabama Court of Criminal Appeals
    • November 2, 1982
    ...P.2d 817, 819 (1972); Baker v. Superior Court of Los Angeles County, 24 Cal.App.3d 124, 100 Cal.Rptr. 771, 772 (1972); Miller v. State, 281 P.2d 441, 445 (Okl.Cr.App.1955). The ordinary meaning of "furnish" is to provide or supply. 17A Words and Phrases, "Furnish" The meaning of furnish as ......
  • People v. Gaither, Cr. 6575
    • United States
    • California Court of Appeals
    • September 14, 1959
    ...defendant would not have committed a violation of section 216 (see State v. Stapp, 246 Mo. 338, 151 S.W. 971; Miller v. State, Okl.Cr., 281 P.2d 441; Leary v. State, 14 Gal.App. 797, 82 S.E. 471), although he would have been guilty of an attempt to violate 'Administer' in the sense intended......
  • McKissick v. State, 4 Div. 824
    • United States
    • Alabama Court of Criminal Appeals
    • November 24, 1987
    ...P.2d 817, 819 (1972); Baker v. Superior Court of Los Angeles County, 24 Cal.App.3d 124, 100 Cal.Rptr. 771, 772 (1972); Miller v. State, 281 P.2d 441, 445 (Okl.Cr.App.1955). The ordinary meaning of 'furnish' is to provide or supply. 17A Words and Phrases, 'Furnish' "The meaning of furnish as......
  • Roberson v. State, No. A-12970
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • April 26, 1961
    ...of ready identification, and constitutes no part of the information itself.' Such is true in indictments. In Miller v. State, Okl.Cr., 281 P.2d 441, 443, Jones, P. J., speaking for the Court, 'Although the caption placed on the indictment by the county attorney describes the crime as 'furni......
  • Request a trial to view additional results

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