Raybourn v. State, A-12567

• Decision Date: 10 September 1958
• Docket Number: No. A-12567,A-12567
• Citation: 339 P.2d 539
• Parties: William Robert RAYBOURN, 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 539

339 P.2d 539

William Robert RAYBOURN, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12567.

Criminal Court of Appeals of Oklahoma.

Sept. 10, 1958.

Rehearing Denied May 13, 1959.

Syllabus by the Court

1. An information may be amended in matters of either form or substance when it can be done without prejudice to the substantial rights of the accused.

2. Where an information charging a felony is amended, and the charge in the amended information is substantially the same as the charge in the preliminary complaint before the committing magistrate,

the contention that accused should have a right to preliminary hearing on the amended information is untenable.

3. Under 21 O.S.1951 § 1561, it is not necessary for an information to allege that any particular person was intended to be injured, and the insertion of any such name in the information is purely surplusage.

4. Under 21 O.S.1951 § 1561, an erroneous allegation in the information as to the person injured or intended to be injured is not material under prosecutions of this character. An intent to defraud any person, association, or body politic or corporate by means of any forged deed or other forged instrument is sufficient.

5. When an offense involves the commission of, or an attempt to commit a private injury and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured is not material.

6. Proof aliunde of the corpus delicti is required. Like any other fact the subject of judicial investigation, it may be proved by circumstantial evidence.

7. The corpus delicti need not be established beyond a reasonable doubt, but it is sufficient if the evidence thereon be substantial.

8. The corpus delicti being established by proof other than the defendant's confession, the confession then becomes admissible for the purpose of connecting the defendant with its commission.

9. The burden is upon him who challenges the admissibility of a confession to show that it was procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show that fact.

10. Where the proof of the state establishes prima facie the confession of the defendant was voluntarily made, the defendant offered no proof to the contrary, and the trial court finds preliminary to the submission of the confession to the jury the confession was voluntarily made, the confession is admissible to identify the defendant and connect him with the crime.

Appeal from the District Court of Pottawatomie County; J. Knox Byrum, Judge.

Plaintiff in error, William Robert Raybourn, was convicted of the crime of forgery in the first degree, sentenced to serve a term of seven years in the state penitnetiary, and he appeals. Affirmed.

Hendon & Hendon, Shawnee, by Claude Hendon, Shawnee, Okl., for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

BRETT, Presiding Judge.

Plaintiff in error, William Robert Raybourn, defendant below, was charged by information in the District Court of Pottawatomie County, Oklahoma, with the crime of forgery in the first degree in violation of 21 O.S.1951 § 1561. The information, in substance, alleged he feloniously forged a release to a mortgage covering a piece of residential property and caused the same to be filed and recorded in the office of the Pottawatomie County Clerk. The mortgage had been executed by the defendant and his wife in the sum of $15,000 to the Midwest Mortgage Company, hereinafter called the Mortgage Co., and assigned to the Metropolitan Life Insurance Company of New York, hereinafter called the Insurance Co., which appeared to be the record owner thereof. He was tried by a jury, convicted, and his punishment fixed at seven years in the state penitnetiary. Judgment and sentence were entered accordingly, from which this appeal has been perfected.

The defendant herein entered his plea of not guilty to the information and later withdrew the plea for the purpose of demurring to the information, which was done. It is well to note that the original information upon which the prosecution was instituted did not plead the release upon which this prosecution was predicated. On this failure, and four other grounds, the defendant based the demurrer. The demurrer was sustained on the ground of failure to plead the release and on all other grounds was overruled. The trial court gave the state leave to amend its information which, except for this one ground, was found to be sufficient to sustain the charge. The state amended the information by giving the book and page where said release was recorded and attached a true copy of the release of the mortgage to the information.

On the foregoing facts, the defendant contends the trial court was without jurisdiction to try the cause for the reason it had granted the county attorney leave to file an amended information after the court had sustained the defendant's fifth proposition to the original information and thereafter the defendant not being accorded a preliminary hearing on the amended information constitutes reversible error.

The effect of this procedure was that the trial court did not sustain the demurrer on the ground the information was insufficient to state a cause of action, but held it should be amended to provide additional descriptive matter. This was undoubtedly done under the provisions of 22 O.S.1951 § 304:

'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; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit.'

Shiever v. State, 92 Okl.Cr. 239, 222 P.2d 530, 531, holds:

'Where trial court allows information to be amended as to form only on the day the case is assigned for trial, the burden is upon defendant to show that such amendment materially prejudiced the accused.'

It is material that the defendant made no attempt to show he was prejudiced by the amendment. Pruitt v. State, 94 Okl.Cr. 387, 236 P.2d 702, 703, holds:

'An information may be amended in matters of either form or substance where it can be done without prejudice to the substantial rights of the accused, and no amendment shall cause any delay in the trial unless for good cause shown by affidavit.'

Gower v. State, 94 Okl.Cr. 184, 237 P.2d 162. An examination of the original and amended informations disclose they describe the same identical offense, to-wit: the forging of the release in question and the filing of the same of record with the intent to defraud. Except for the descriptive averments of the book and page where the document was filed and the attachment of the alleged forged release, the amended information is identically the same as the original information. There could be no question as to the charge alleged and the property involved or the amount of the mortgage attempted to be released. Since these matters were adequately pled, the defendant could not be twice placed in jeopardy on the same charge. Vandiver v. State, 97 Okl.Cr. 217, 261 P.2d 617, 619, which states in syllabus 2:

'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 plea the judgment in bar if again informed against for the same offense, is sufficient.'

Johnson v. State, 97 Okl.Cr. 200, 261 P.2d 480. Ex parte Conway, 84 Okl.Cr. 118, 179 P.2d 699, holds:

'Where an information charging a felony is amended, and the charge in the amended information is substantially the same as the charge in the preliminary complaint before the committing magistrate, the contention that accused should have a right to preliminary hearing on the amended information is untenable.'

In White v. State, 23 Okl.Cr. 198, 214 P. 202, 205, it is said:

'The fact that the original information was adjudged insufficient for want of descriptive averments and that the defendant was subsequently confronted with a new or amended information does not of itself give him the right to demand another preliminary hearing. The same offense was described in both informations. The preliminary examination was sufficient to support the information on which he was finally tried and convicted.'

Under this record, the defendant was not prejudiced by failure to set out the release and plead the book and page of its recording. In Horn v. State, 31 Okl.Cr. 347, 349, 238 P. 966, 967, it was indicated an allegation of the forged instrument was better practice; it was not necessarily essential. The Court said:

'However, the failure to set out the instrument could in no sense have been prejudicial to the defendant. For, if the description as alleged in the information failed to fully apprise the defendant of the instrument in question, the allegation of the book and page where the same was recorded afforded him an opportunity to fully ascertain the contents, and under this state of facts the error was harmless.'

This holding supports the rule that if there is sufficient allegation of descriptive matter to enable the defendant to ascertain the contents of the forged instrument, the error in failing to plead the forged release in this case is harmless. The description of the property, the amount of the mortgage, the date thereof, the names of the mortgagors, the description of the mortgagee, the Mortgage Co., and the description of the assignee, the Insurance Co., as the parties affected by the release, afforded the defendant ample opportunity to ascertain the contents...