Place v. State

• Decision Date: 01 August 1956
• Docket Number: No. A-12298,A-12298
• Citation: 300 P.2d 666
• Parties: Merle PLACE, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 666

300 P.2d 666

Merle PLACE, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12298.

Criminal Court of Appeals of Oklahoma.

Aug. 1, 1956.

Syllabus by the Court.

1. The proper manner to attack the sufficiency of an information is by demurrer. 22 O.S.1951 § 504(4).

2. While the practice of including in a motion to quash information a challenge to the sufficiency thereof (ordinarily presented separately by demurrer) is not approved: Held that the allegations in the body of such a motion in the within case was sufficient to raise the issue as to the sufficiency of the information.

3. There are three essential elements requisite to constitute an attempt to commit a crime, and being: (1) intent; (2) the performance of some act towards its commission; and (3) failure of consummation.

4. Overt act is sufficient to complete offense of attempt to commit crime, if it goes far enough towards accomplishment of offense to amount to commencement of its consummation.

5. 'Attempt to commit crime' as distinguished from mere preparation consists of a direct movement towards consummation of intended crime, after preparations have been made.

6. Attempted burglary of a building would be the doing of some act with intent to forcibly enter the building with object of stealing, and failure in gaining entrance.

7. Under the constitution of this State, it is necessary for an information or indictment to state the ultimate facts necessary to constitute an offense. Allegations of conclusions of law and the opinions of the pleader will not charge an offense against the law.

8. Information charging attempted burglary in the second degree examined and found defective by reason of failure to properly describe some act taken towards its commission, and in not setting out the failure of consummation.

9. While it is the law that intent to commit a crime must be one in fact, not merely one in law, the intent may be inferred from the circumstances.

10. Error in permitting jury to view carpenter's tools that State failed to identify, under the record in this case, found to constitute harmless error. 22 O.S.1951 § 1068.

11. Record examined and found that evidence was sufficient to support the conviction.

Appeal from the District Court of Kay County; C. L. Armstrong, Judge.

Merle Place was convicted of the crime of attempted burglary, and appeals. Reversed with direction to retry.

Raymond A. Trapp, Blackwell, Joe L. Hayward, Ponca City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., James P. Garrett, J. Walker Field, Asst. Attys. Gen., for defendant in error.

POWELL, Judge.

The plaintiff in error, Merle Place, hereinafter referred to as defendant, was charged by information filed in the district court of Kay county with the crime of attempted burglary in the second degree, was tried before a jury and found guilty, with punishment left to be fixed by the court, the jury being unable to agree. The defendant was by the court sentenced to serve a term of two years in the State Penitentiary.

For reversal, counsel advances three specifications of error.

It is first argued that the information was insufficient to charge the crime of attempted burglary in the second degree.

We are not satisfied with and do not approve the manner in which it is contended this proposition was raised in the trial court. We note that at his arraignment there was filed on behalf of the defendant a motion to quash the information; and as stated by the Attorney General, this was based principally upon the alleged insufficiency of the evidence at the preliminary hearing, and upon an alleged loss of jurisdiction of the person of defendant by his being taken to another county to face another charge after being arrested in Kay County on the charge here considered. But the motion did include the formal allegation that the information 'does not state a crime under the laws of the State of Oklahoma.'

Now, concerning the information, the record is silent as to whether or not the alleged defects were presented to the trial court and the court afforded opportunity of examination of the information in relation to such alleged defects, or whether only some of the other matters were urged. This court has under varied situations refused to reverse cases where error appeared, but the trial court was not afforded the opportunity to make correction; that is, where it was not apparent that the issue was not clearly and frankly presented.

The proper manner to attack the sufficiency of an information is by demurrer. See 22 O.S.1951 § 504(4); Sandy v. State, 94 Okl.Cr. 80, 231 P.2d 374; Deberry v. State, 91 Okl.Cr. 399, 219 P.2d 253.

It is true in the within case the defendant's trial counsel Bruce B. Potter did challenge the sufficiency of the information by an objection to the introduction of evidence by the State, but if the 'motion to quash information' was not sufficient, as urged by the State, the challenge, by objecting to the introduction of evidence came too late, and every intendment and presumption must be indulged to sustain the information. Douglas v. State, 93 Okl.Cr. 132, 225 P.2d 376.

Although unorthodox and subject to the criticism mentioned, was the motion to quash the information under the circumstances set out, sufficient to raise the question as to the sufficiency thereof?

It is the general rule in civil cases that a pleading in a cause is governed by the contents, rather than by the title. Leonard v. Tulsa Building & Loan Ass'n, 184 Okl. 558, 88 P.2d 875; White v. Mitchell, 206 Okl. 151, 241 P.2d 407. Such being so in the case of property rights, how much more so should this be the rule where human rights are involved. In the case of Bleakley v. Barclay, 75 Kan. 462, 89 P. 906, 10 L.R.A.,N.S., 230, 241, it was held in a habeas corpus proceeding that a motion to quash the writ amounted to the same thing as a demurrer to the petition. Under the facts recounted then, we hold in spite of our criticism mentioned, that the motion to quash the information by reason of the wording in its body, amounted to the same thing as a demurrer.

The information, omitting formal parts, is as follows:

'I, the undersigned county attorney of said county * * *, give information that on or about the 20th day of December, A. D. 1955, in said county of Kay and State of Oklahoma, one Merle Place, * * * did then and there unlawfully and feloniously attempt to commit the crime of second degree burglary:

'That is to say, the said defendants, in the county and state aforesaid, and on the day and year aforesaid, then and there being, did then and there wilfully, unlawfully, wrongfully and feloniously attempt to break and enter into a one story brick building located at 200 North 1st Street, Ponca City, Kay County, Oklahoma, which said building was then and there under the control of and in the possession of Morris Adams, and in which said building there was then and there kept certain personal property, to-wit: Groceries, Cigarettes, monies and other items usually kept in a food market, by attempted forcible entry through a north window of said building

[by the cutting away and removal of the screen from said window and attempting to cut out glass window panes of said window]

with the unlawful, wrongful and felonious intent then and there on the part of the said defendants to take, steal and carry away by stealth and fraud, and without the knowledge or consent of the said Morris Adams, part or all of the merchandise therein contained, the personal property of Morris Adams,

[and the said Merle Place would have completed his entrance into said building if he had not been frightened away or caused to desist by reason of the said Morris Adams entering and turning on the lights in said building; all of which acts were then and there done by him, the said Merle Place]

with the unlawful, wrongful and felonious intent to appropriate the said property to his own use and benefit, and to deprive the said rightful owner permanently thereof, contrary to the form and statutes in such cases made and provided, and against the peace and dignity of the State.'

The statutory provisions concerning burglary are sections 1431, 1435 and 1436 of Title 21 O.S.1951. Ordinarily, charging the crime in the words of the statute is sufficient unless it is apparent that elements exist outside of the statute. But the problem here is that the applicable section of the statute, § 1435, under which the information was prepared, does not of itself define the crime of attempt. Another statute must be referred to for that, 21 O.S.1951 § 42. Section 1435, 21 O.S.1951, reads:

'Every person who breaks and enters any building or any part of any building, room, booth, tent, railroad car, automobile, truck, trailer, vessel or other structure or erection in which any property is kept, with intent to steal therein or to commit any felony, is guilty of burglary in the second degree.'

21 O.S.1951 § 42 relates to attempts to commit crimes and provides for punishment.

The information, as contended by the State, and as has been seen, very closely follows the outline of the offense of burglary in the second degree as set out in the statute. But is it sufficient?

As this court pointed out in the case of Dunbar v. State, 75 Okl.Cr. 275, 131 P.2d 116, 117 (and see Taylor v. State, 96 Okl.Cr. 188, 251 P.2d 523), there are three essential elements requisite to constitute an attempt to commit a crime, and being: intent, the performance of some act towards its commission, and failure of consummation.

In Dunbar v. State, supra, it was stated:

'Overt act is sufficient to complete offense of attempt to commit crime, if it goes far enough towards accomplishment of offense to amount to commencement of its consummation.

"Attempt to commit crime,' as distinguished from mere preparation, consists of a direct movement toward consummation of intended crime after preparations have been made.'

In the...