Norris v. State

• Decision Date: 29 November 1939
• Docket Number: A-9581.
• Citation: 96 P.2d 540,68 Okla.Crim. 172
• Parties: NORRIS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

96 P.2d 540

68 Okla.Crim. 172

NORRIS v. STATE.

No. A-9581.

Court of Criminal Appeals of Oklahoma

November 29, 1939

Syllabus by the Court.

1. The pendency of an action and the holding of a defendant for trial in one court of the state does not preclude the state from instituting another prosecution for the same offense in a court of concurrent jurisdiction. A plea in abatement or a plea in bar because of the pendency of the prior action will not lie in such latter action.

2. Where a former information charged defendant and another jointly with the commission of the crime of kidnapping and on his separate trial the jury failed to agree and a mistrial was declared, and after a preliminary examination a subsequent information charging defendant with kidnapping second offense, was filed, held, that the pendency of such former information did not constitute former jeopardy.

3. 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 him to make his defense, and to plead the judgment in bar of any further prosecution for the same offense, is sufficient.

4. One who boards another's automobile without lawful authority and forces such other to drive him to such place as he desires to go, kidnaps such other within the statute defining kidnapping as the forcibly seizing, confining and kidnapping of another "for the purpose of extorting any money property or thing of value or advantage from the person so seized, confined, inveigled or kidnapped." Sec. 1, Art. 6, Ch. 15, Sess. Laws 1937, 21 Okl.St.Ann. § 745.

5. The act of forcibly taking possession of auto truck on highway and seizure of motorist, demanding his property with threats against his life, and carrying him away against his will for the purpose of extorting money and property from him, kidnapping commenced with asportation.

6. Robbery is not completed at the moment the stolen property is in the robber's possession, to constitute robbery there must be an asportation.

7. In a prosecution for kidnapping, second offense, evidence held sufficient to sustain verdict and judgment of conviction. Held, further, that no material error was committed on the trial.

Appeal from District Court, Seminole County; H. H. Edwards, Judge.

Emmitt Norris was convicted of kidnapping, and he appeals.

Judgment affirmed.

Bishop, Bishop & Seay, of Seminole, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.

DOYLE Presiding Judge.

Plaintiff in error was convicted in the district court of Seminole County of the crime of kidnapping, alleged to have been committed in said county on or about September 8, 1937, and in accordance with the verdict of the jury was sentenced to serve a term of Thirty years imprisonment in the penitentiary. The information charges that:

"The Defendant, Emmitt Norris, did then and there wilfully, unlawfully, forcibly and feloniously and without the authority of law, kidnap one Joe Tye for the purpose of extorting money and property from the said Joe Tye by then and there wilfully, unlawfully, forcibly and feloniously, seizing, confining, inveigling and kidnapping the said Joe Tye with the unlawful and felonious intent then and there upon the part of the said defendant to seize, confine, inveigle and kidnap the said Joe Tye at a point on Highway No. 48 North of the City of Seminole, and did then and thereby commit the crime of kidnapping for the purpose of Extortion; Said Kidnapping being a second and subsequent offense.

He, the said Emmitt Norris, having prior thereto been convicted in the District Court of Mayes County, Oklahoma on the 11th day of February, 1931 with the crime of Robbery with fire-arms and then and there sentenced and committed to the State Penitentiary at McAlester, Oklahoma for a term of twelve (12) years.

He, Emmitt Norris, the said defendant, having been prior thereto on the 8th day of May, 1925, convicted with the crime of Murder in the First Degree in Case No. 695 of Smith Wilcox in the Ninth Judicial Circuit Court of Polk County, Arkansas and then and there sentenced and committed to the penitentiary of the State of Arkansas at hard labor for life.

He, Emmitt Norris, the said defendant, having been prior thereto on the 8th day of May, 1925, convicted with the crime of Murder in the First Degree in Case No. 696 of Nannie Wilcox in the Ninth Judicial Circuit Court, of Polk County, Arkansas, and then and there sentenced and committed to the penitentiary of the State of Arkansas at hard labor for life.

Contrary to" etc.

The assignments of error presented in the brief are: Error of the court in overruling defendant's plea in abatement; error of the court in overruling defendant's demurrer to the information; error of the court in overruling defendant's demurrer to the evidence, and motion for an instructed verdict of not guilty.

The prosecution is based on Sec. 1, Art. 6, Ch. 15, Session Laws 1937, 21 Okl.St.Ann. § 745, which in part provides: "A. Every person who, without lawful authority, forcibly seizes and confines another, or inveigles or kidnaps another, for the purpose of extorting any money, property or thing of value or advantage from the person so seized, confined, inveigled or kidnaped, or from any other person, or in any manner threatens either by written instrument, word of mouth, message, telegraph, telephone, by placing an ad in a newspaper, or by messenger, demands money or other thing of value, shall be guilty of a felony, and upon conviction shall suffer death or imprisonment in the penitentiary, not less than ten years."

Taking up the errors assigned in the order presented, the first question arises on the action of the court in overruling the so styled plea in abatement.

Under the Code of Criminal Procedure, a motion to quash and set aside an information takes the place of the plea in abatement at common law, a plea the subject matter of which may be any objection which could not be properly interposed by a plea in bar.

Any plea setting up absence of jurisdiction of the court is a plea to the jurisdiction. State v. Barnett, 60 Okl.Cr. 355, 69 P.2d 77.

The purpose of a plea, no matter what nomenclature is used, is to make an issue.

In the instant case the so called plea was submitted to the court on the following stipulation:

"It is hereby stipulated and agreed by and between the State of Oklahoma and the Defendant, that the defendant, Emmitt Norris, was charged by the State of Oklahoma, in Case No. 501, in the Superior Court of Seminole County, with the crime of Kidnapping, and that on the 25th day of February, 1938, he was tried on said charge by a jury, the said jury being unable to agree and this jury being discharged by the Superior Court after failing to agree upon a verdict after all evidence of both the state and defendant was submitted to them, and that thereafter on the 25th day of February, 1938, the State moved for a transfer of said action to the District Court of Seminole County, Oklahoma to which motion the defendant then and there objected and the court overruled said objection and ordered said cause No. 501 transferred to the District Court of Seminole County, to the action of the court the defendant then and there objected, and exceptions were allowed.

That thereafter, while said cause No. 501 was still pending and undisposed of the State files another action before Hon. Bob Aubrey, sitting as Committing Magistrate, by preliminary complaint, charging the defendant with the crime of kidnapping; that he was by said committing magistrate bound to the District Court of Seminole county for trial, and said action is not action 501 as transferred from the Superior Court, but cause No. 4792, wherein the defendant is charged with the crime of kidnapping, but in addition thereto is charged under the habitual offender act, said habitual offender clause being omitted from or not included in the charge filed in the Superior Court."

The statutes of this state do not forbid a prosecution in the same court or in a different court of concurrent jurisdiction where jeopardy has not attached.

It is the well settled rule in this state that the pendency of an action and holding of the defendant for trial in one court of the state does not preclude the state from instituting another prosecution for the same offense in a court of concurrent jurisdiction. A plea of abatement, or a plea in bar because of the pendency of an action, will not lie in such latter action. Tobin v. State, 49 Okl.Cr. 265, 293 P. 575.

The rule is also stated in the case of Kerker v. Superior Court, 38 Okl.Cr. 111, 259 P. 146, 147. In the opinion it is said:

"Jeopardy does not attach until a person is put on trial before a court of competent jurisdiction under an information or indictment sufficient in form and substance to sustain a conviction and a jury has been impaneled and sworn. In re McClaskey, 2 Okl. 568, 37 P. 854; Schreiber v. Clapp, 13 Okl. 215, 74 P. 316; Dupree v. State, 14 Okl.Cr. 369, 171 P. 489 [L.R.A.1918D, 365].

The statutes of some of the states have settled this question by providing that, where different courts have concurrent jurisdiction of an offense, in certain contingencies one or the other shall have exclusive jurisdiction. This is illustrated in the...