Phillips v. State, A-11852

• Decision Date: 17 February 1954
• Docket Number: No. A-11852,A-11852
• Citation: 267 P.2d 167
• Parties: PHILLIPS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 167

267 P.2d 167

PHILLIPS v. STATE.

No. A-11852.

Criminal Court of Appeals of Oklahoma.

Feb. 17, 1954.

Syllabus by the Court.

1. The fact it may be necessary to allege in an information brought under the provisions of Title 21, § 745, O.S.1951, all the elements essential to completely charge the offense of kidnapping under Title 21, § 741, O.S.1951, will not form the basis for the complaint of duplicity where, in addition thereto, other essential elements are alleged (for the purpose of extorting a thing of value), which takes the case out of the definitive ambit of Title 21, § 741, O.S.1951, and brings it within the specific definitive provisions of Title 21, § 745, O.S.1951.

2. Where the information has not been challenged by demurrer or motion to quash, the defendant pleads to the information and goes to trial, any objection to the sufficiency of the information should be overruled if by any intendment, inference or presumption, it can be sustained.

3. An information or indictment 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.

4. Where the record discloses no plea on arraignment was entered, and the defendant announced ready for trial, the trial court may treat the defendant's waiver of arraignment and plea as a plea of not guilty and it is proper to instruct the jury thereon that the defendant had entered a plea of not guilty notwithstanding, in the trial the evidence is sufficient to raise the issue of insanity, and no reversible error is committed under such a record where the trial court properly instructs the jury on the issue of insanity.

5. Highly conflicting evidence in the trial of a criminal case creates an issue of fact for the determination of the jury.

6. Newly discovered evidence to be available as a ground for new trial must have been discovered after the trial, and it must appear that the same could not have been had at the trial with the exercise of reasonable diligence.

B. S. Null, Hartshorne, Willard Gotcher, M. O. Counts, McAlester, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., Homer Neece, County Atty., McAlester, for defendant in error.

BRETT, Justice.

The plaintiff in error Robert Phillips, defendant below, was charged by information in the district court of Pittsburg county, Oklahoma, with the crime of kidnapping (Title 21, § 745, O.S.1951) one Jackie Parris. The crime was allegedly committed on April 1, 1951 in said county and state. The defendant was tried by a jury, convicted, and the jury was unable to agree on the punishment which was left to the trial court to assess. The trial court sentenced the defendant to the State Penitentiary for 20 years and judgment and sentence was entered accordingly, from which this appeal has been perfected.

The defendant attacks the sufficiency of the information on three grounds, (1) that the information was defective in that the offense charged was not direct and certain, (2) on the ground that the information was duplicitious in that it attempted to set forth separate offenses without pleading them in separate counts, and (3) the information failed to charge a violation of law under the statutes of the state of Oklahoma. For the foregoing reasons the defendant contends the trial court erred in overruling his demurrer to said information. The information hereinafter set forth will disclose the lack of merit in the defendant's first contention. The information was sufficiently direct and certain to inform the defendant of the charge confronting him, kidnapping, as defined in the Oklahoma statutes.

The defendant next contends the information is duplicitous in that it cannot be determined whether the charge is laid under the provisions of Title 21, § 741, subs. (1), or Title 21, § 745, O.S.1951, the pertinent parts thereof reading respectively as follows, to wit:

'Every person who, without lawful authority, forcibly seizes and confines another, or inveigles or kidnaps another, with intent, either:

'First. To cause such other person to be secretly confined or imprisoned in this State against his will; or,

'Second. * * *

'Third. * * *.'

§ 745. '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, * * * shall be guilty of a felony, and upon conviction shall suffer death or imprisonment in the penitentiary, not less that ten years. * * *'

The essence of the charging part of the information reads as follows:

'* * * that Robert Phillips did * * * then and there unlawfully, * * * and feloniously and forcibly, seize and confine one Jackie Parris, * * * with the unlawful, * * * and felonious intent then and there on the part of him,' that she 'be carried and transported out of the County of Pittsburg, State of Oklahoma, * * * to places in Haskell and Latimer Countes, Oklahoma, * * * and held * * * against her will, and at the same time making threats against her life or doing her serious bodily harm in the event she, * * * failed and refused to * * * do as he, * * * commanded her, * * * and at the same time the said Robert Phillips was seeking an advantage from the said Jackie Parris by * * * attempting to have carnal knowledge of her, * * * for the purpose of violating her chastity and virtue * * *, contrary to the form of the statutes, * * *' etc.

The defendant contends that the foregoing information is duplicitous in that it first alleges kidnapping for the purpose of confinement or imprisonment within the state of Oklahoma, under the provisions of Title 21, § 741, O.S.1951; and then alleges kidnapping for the purpose of extorting a thing of value, to wit, her chastity. Title 21, § 745, O.S.1951. Thus he contends two separate crimes are alleged in the information. The essential elements of both statutes are Title 21, § 741, O.S.1951, kidnapping with the intent to secretly confine or imprison another in this state, against his will; Title 21, § 745, O.S.1951, kidnapping and confining him against his will with the purpose of extorting a thing of value from him. So far as the allegations of kidnapping and confinement are concerned an information brought under either statute may be almost identical but to allege a completed offense under the provisions of Title 21, § 745, O.S.1951, there must be alleged in addition thereto that the confinement is for the purpose of extorting a thing of value. Hence the statutes define different crimes in some essentials alike and yet completely dissimilar as to the purpose of the confinement. Under the provisions of § 741 one may be kidnapped and confined for the alleged purpose of imprisonment while under the provisions of § 745 the kidnapping and confinement must be for the specific purpose of extorting a thing of value. The fact it may be necessary to allege in an information brought under the provisions of Title 21, § 745, O.S.1951, all the elements essential to completely charge the offense of kidnapping under Title 21, § 741, O.S.1951, will not form the basis for the complaint of duplicity where, in addition thereto, other essential elements are alleged (for the purpose of extorting a thing of value) which takes the case out of the definitive ambit of Title 21, § 741, O.S.1951, and brings it within the specific definitive provisions of Title 21, § 745, O.S.1951.

This information is by no means a model of pleading. Nevertheless the essential facts plead in the information, stripped of surplusage, allege all the elements of the kidnapping and confinement for the purpose of having carnal knowledge with the Parris girl and thereby extorting a thing of value from her, her chastity and virtue. Had the pleader contented himself in the case at bar with alleging the unlawful and forcible kidnapping of the victim of this crime for the purpose of causing her to be secretly confined or imprisoned in the state of Oklahoma, the case would then have come within the pertinent provisions of § 741, Title 21, O.S.1951, hereinbefore set forth, but when the pleader alleged further facts showing the object of said kidnapping and confinement was for the purpose of extorting a thing of value, her chastity, the pleader thereby removed the information from the provisions of § 741, Title 21, O.S.1951, and clearly brought the information within the provisions of Title 21, § 745, O.S.1951. We are therefore of the opinion that the information while not a model was sufficient to inform the defendant of the offense of which he was charged and the statute under which the charge was brought.

In light of the foregoing, we are further of the opinion that the third contention hereinbefore set forth charging that the information was not sufficient to allege a violation of law is wholly without merit.

Regardless of the foregoing, the information must be read in light of the delayed attack made on the same. The record discloses the demurrer was filed herein on June 15, 1951, approximately 8 months prior to the trial of the case, alleging both duplicity, and failure to state an offense, but the same was never presented to the trial court. The information was attacked after both the state and defendant announced ready for trial, and the state had concluded its opening statement; it was renewed after the state's evidence was completed. The law applicable to such a situation is clearly stated in Jennings v. State, 92 Okl.Cr. 347, 223 P.2d 562, 563, as follows:

'Where the information has not been challenged by demurrer or motion to quash, the defendant pleads to the...