Rapp v. State
| Decision Date | 27 April 1966 |
| Docket Number | No. A--13761,A--13761 |
| Citation | 413 P.2d 915 |
| Parties | William M. RAPP, 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 |
Syllabus by the Court
1. An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant.
2. A defendant in a criminal case may waive any right not inalienable, given him by the Constitution or by the statute, either by express agreement or conduct, or by such failure to insist upon it in seasonable time as will operate as an estoppel to his afterwards setting it up against the state.
3. Where defendant was represented by counsel at trial, announcement of ready for trial without objection to prior proceedings constituted waiver of objection to arraignment and failure to give defendant a preliminary hearing on second offense charge.
4. Court of Criminal Appeals will only consider those questions which are incorporated in motion for new trial and thereby submitted to trial court for its ruling thereon, excepted to, and afterwards assigned for error, unless the question is jurisdictional.
5. Sentence of ten years in state penitentiary on conviction of disposing of mortgaged property, after former convictions of felonies, not excessive.
6. Where clerical error exists between the 'jury verdict' and the 'judgment and sentence' and same may be corrected without depriving defendant of any substantial right, this Court will direct trial court to correct its judgment and sentence to conform to verdict of jury.
Appeal from the District Court of McIntosh County; Robert J. Bell, Judge.
William M. Rapp was convicted of the offense of disposing of mortgaged property, and appeals. Affirmed.
James E. Pohl, Checotah, for plaintiff in error.
Charles Nesbitt, Atty. Gen., Hugh H. Collum, Asst. Atty. Gen., for defendant in error.
This is an appeal by Willim M. Rapp, hereinafter designated as defendant, who was convicted by a jury in the district court of McIntosh County, on a charge of concealing and removing mortgaged property, after former conviction of felony. In keeping with the verdicts returned, the court sentenced defendant to a term of ten years in the state penitentiary.
Counsel's brief filed herein is styled, 'Brief of Plaintiff in Error--Action to reduce Sentence.'
The evidence of the State disclosed that this defendant, prior to July, 1963, opened an account with the Vandiver Hardware store in Checotah, McIntosh County, Oklahoma, and made certain purchases, and payments. That on January 24, 1964, in order to get his payments on one note, he executed a note in the sum of $584.40, covering the balance due at that time, and signed a 'security agreement' or chattel mortgage to secure the note, and covering the merchandise sold to defendant, and including a five-piece living room suite, a three-piece bedroom suite, and some other articles. He made some payments on the note, but was hurt, and agreed to pay the balance when he collected for his injuries, and payments were stopped.
It was also developed that 'about a year before the trial', or about in May, 1964 defendant sold the living room suite and the bedroom suite to one Albie Short, who lived on Route 1, Eufaula, in McIntosh County, for the sum of $80 cash; and nothing further was paid to the hardware store. Officers of the store filed a charge against this defendant for disposing, removing or concealing mortgaged property, and this appeal is the result of that action.
This action was commenced by the filing of a complaint in the justice of the peace court, charging defendant with 'Removing and disposing of mortgaged property', and the transcript of the justice of the peace contains this notation:
The information filed in the district court on January 28, 1965 charged the defendant with having, on or about June 1, 1964 'removed and disposed of' certain described personal property, covered by a security agreement duly filed of record in McIntosh County, by concealing, selling or disposing of said property 'beyond the limits of McIntosh County, Oklahoma.'
Thereafter, on April 22, 1965 the county attorney attached to the information a charge of prior convictions of defendant.
The case came on for trial on May 10, 1965, and the minute shown in the casemade before us shows:
Thereupon the State put on its evidence. The trial resulted in the jury finding the defendant guilty as charged, and also guilty after former convictions; and fixing his penalty at ten years in the State Penitentiary. Appeal was duly filed in this Court.
In the motion for new trial filed and overruled in this case, three errors are mentioned, only two of which are named in the petition in error. Counsel sets out five errors in the petition in error, which he argues in his briefs under three heads.
In his motion for new trial, counsel states: 'It was error for the Defense to allow the county attorney to amend the information immediately before trial, in as much as no adequate defense could be prepared in time.'
In his petition in error he contends
Counsel in his brief states that immediately before the trial, in the judge's chambers, the words 'beyond the limits of McIntosh County, Oklahoma', were stricken from the information. The casemade shows a line drawn through these words, thusly: It also seems that the charge was changed from 'removed and disposed of', to 'concealed or disposed of', but there is nothing in the record to indicate when or where these changes or amendments were made, and there is nothing to indicate that the defendant objected to this, or any other amendment to the information, before or at the time of going to trial.
Counsel cites two cases in support of his contention, viz: Rich v. State, 46 Okl.Cr. 242, 284 P. 903; and Anthony v. State, 55 Okl.Cr. 260, 28 P.2d 1115. In both of these cases the information was amended after the trial began, and in both cases on appeal this Court held that the trial court committed no error in permitting the amendments. Both cases were affirmed.
Counsel states that although the amendments were performed in the presence of the district judge, the county attorney, and the defense counsel, prejudice did result; that the amendments substantially...
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...on Lamb v. Brown, supra, or its progeny. (State's in camera Exhibit No. 17).7 Starr v. State, 479 P.2d 628 (Okl.Cr.1971); Rapp v. State, 413 P.2d 915 (Okl.Cr.1966).8 According to the terms of 21 O.S.1981, § 51(B), only two prior felony convictions are necessary to provide for the enhancemen......
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Kempton v. State
...shown by the evidence; and whether or not such intent existed was a question of fact to be determined by the jury. In Rapp v. State, Okl.Cr., 413 P.2d 915, 918, it was developed by the evidence that a defendant sold a mortgaged living room suite and bedroom suit and nothing further was paid......
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Berry v. State, F-89-118
...by the absence of a preliminary hearing on the prior convictions. In Starr v. State, 479 P.2d 628 (Okl.Cr.1971), relying on Rapp v. State, 413 P.2d 915 (Okl.Cr.1966) we determined that any error arising from the lack of a preliminary hearing on second and subsequent charges was waived by th......
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Boling v. State
...did not incorporate the specific error regarding conviction under the wrong statute into his motion for a new trial. In Rapp v. State, Okl.Cr., 413 P.2d 915, 919 (1966), we "This question was not presented in the motion for new trial, and we have repeatedly held that we will only consider t......