Ralston v. State

• Citation: 185 P. 831,16 Okla.Crim. 634
• Decision Date: 07 October 1919
• Docket Number: A-3070.
• Parties: RALSTON et al. v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

185 P. 831

16 Okla.Crim. 634

RALSTON et al. v. STATE.

No. A-3070.

Court of Criminal Appeals of Oklahoma

October 7, 1919

Rehearing Denied Jan. 12, 1920.

Syllabus by the Court.

Objections to an information, based upon the absence of any essential preliminary proceeding, should be made by proper motion or plea, before pleading to the merits.

Objections to the sufficiency of an information should be taken by a demurrer thereto, as provided by Code of Criminal Procedure (section 5791, Rev. Laws 1910).

Our Code further provides: "When the objections mentioned in section 5791 appear upon the face of the indictment or information, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty and in arrest of judgment." Section 5799.

Where the defendant enters his plea of not guilty and waits until after the jury has been impaneled and sworn, and then for the first time questions the sufficiency of the information by objecting to the introduction of evidence on the ground of such insufficiency, the objection should be overruled, if by any reasonable construction or intendment the information can be sustained.

Errors assigned on the instructions given, where no objection was made or exception taken to the same, will not be reviewed.

The evidence upon the trial of an information for larceny of domestic animals considered, and conviction affirmed.

Appeal from District Court, Creek County; Earnest B. Hughes, Judge.

Will Ralston and John Ralston were convicted of hog theft, and they appeal. Affirmed.

R. B Thompson, of Sapulpa, and Asp, Snyder, Owen & Lybrand, of Oklahoma City, for plaintiffs in error.

S. P Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.

DOYLE P.J.

Plaintiffs in error, Will and John Ralston, were tried and convicted on an information charging that-

In Creek county, on the 31st day of December, 1916, they "did unlawfully and feloniously by stealth and fraud steal, take and carry away from and out of the possession of Margaret Fout, the owner of the following domestic animals to wit, one sow and six pigs without the consent or knowledge of her, the said Margaret Fout, with the felonious intent of them the said Will Ralston and John Ralston to deprive the true owner thereof and with the intent to convert the same to the use of them the said Will Ralston and John Ralston, contrary to," etc.

The jury failed to agree on their punishment. The court sentenced Will Ralston to serve a term of four years and John Ralston to serve a term of three years in the penitentiary. From the judgments they appeal.

First, it is contended that the district court was without jurisdiction of the case owing to the insufficiency of the transcript of the committing magistrate. The record shows that upon arraignment the defendants entered pleas of not guilty, and made no objection until the second witness for the state was testifying, when their counsel made the following statement:

"At this time the defendants and each of them object to the testimony of this witness or any other witness on the ground that the purported transcript of the justice of the peace in this case is not sufficient to give the court jurisdiction."

The objection was overruled and exception allowed.

Objections to an information based upon the absence of any essential preliminary proceeding or irregularity in such proceeding should be made by a proper motion or plea before pleading; otherwise, it is waived. The proper practice is to raise the question before pleading by motion to set aside or to quash the information or by plea in abatement. The state can then take issue on the motion or plea, and the burden of proof is on the defendant, even if well founded and properly stated the objection made came too late and was properly overruled.

The next assignment is, "The information does not allege the stealing of any animals, and is therefore insufficient."

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