Roberson v. State

Decision Date26 April 1961
Docket NumberNo. A-12970,A-12970
Citation362 P.2d 1115
PartiesJack ROBERSON, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Syllabus by the Court

1. The caption of a cause is placed upon the information for convenience, and for the purpose of ready identification and constitutes no part of the indictment or information itself.

2. The caption to an indictment or information does not control in determining the nature of the offense allegedly charged, but the words stated in the body of the indictment or information must be considered in the light in which they are used to determine whether they charge an offense.

3. Courts may make amendments to an indictment or information where the amendments are in matters of form, or to correct mere irregularities, and do not go to matters of substance.

4. In order to subject an accused to the enhanced punishment for a second or subsequent offense, or as an habitual criminal it is necessary to allege in the indictment or information the fact of a prior conviction or convictions.

5. In order to convict an accused as for a second offense, it is necessary to allege in the indictment or information his conviction of a former offense.

6. An amendment to an indictment shall not be ordered or permitted to charge accused as a second and subsequent offender, since to so do would allow a substituted indictment in a matter of substance other than that returned by the grand jury.

Appeal from the District Court of Tulsa County; Raymond W. Graham, Judge.

Jack Roberson was convicted of the crime of robbery with firearms, conjoint, and appeals. Reversed and remanded with directions.

Jay C. Baker, Tulsa, for plaintiff in error.

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

BRETT, Judge.

This is an attempted appeal by casemade by Jack Roberson, defendant below, plaintiff in error herein.

The attempted appeal is from a charge by indictment for conjoint robbery with fire arms of Bobby Robertson of the sum of $350 by threatening said Robertson with a .38 automatic pistol, on January 20, 1960 in Tulsa County, Oklahoma, thereby putting Robertson in fear of his life, and taking from him the said sum of money. Defendant was tried by a jury, convicted, and his punishment set at 25 years in the penitentiary. Judgment and sentence was pronounced accordingly, from which this appeal by casemade was attempted.

The judgment and sentence was entered on April 19, 1960, at which time an extension of time was entered granting defendant sixty, ten and five days in which to prepare, serve, sign and settle casemade. According to the record, no other extension of time appears to have been granted. The time for appealing therefore expired in June, 1960. It appears that the record was not served herein until October 11, 1960, but the petition in error and casemade were filed in this court on October 14, 1960, within the time for perfecting an appeal by transcript, but not by casemade.

This case falls within the rule announced in Boyd v. State, 97 Okl.Cr. 331, 263 P.2d 202; Hoofer v. State, 82 Okl.Cr. 237, 164 P.2d 247, 168 P.2d 313; and Leach v. State, 95 Okl.Cr. 237, 246 P.2d 416.

On an appeal by transcript we are limited in our consideration to the transcript proper, composed of the indictment, the minutes, the instructions and the judgment and sentence. London v. State, Okl.Cr., 297 P.2d 567; Dixon v. State, 95 Okl.Cr. 207, 242 P.2d 474.

In Brown v. State, 89 Okl.Cr. 389, 208 P.2d 1143, we held that appeal by petition in error and transcript presents for review only fundamental errors, and not errors which require examination of the evidence taken at the trial. Questions as to admissibility and sufficiency of evidence cannot be urged on an appeal by transcript. Leach v. State, supra.

An examination of the indictment and minutes of the court discloses a fundamental error, prejudicial to the rights of the defendant. The indictment charges the sole and only crime of robbery with fire arms allegedly committed on January 20, 1960. There is no allegation as to former conviction in the indictment proper, such allusion appearing only in the descriptive label of the caption, 'Robbery with fire arms, after former conviction of felony'.

In a minute entered on March 8, 1960 the following notation appears: 'Permission given to attorney to attach prior record to face of indictment', the inference being to grant the county attorney permission to attach defendant's prior criminal record, which the county attorney did.

The question thus presented by the transcript is, can an indictment such as the one herein presented by amended by attaching to the face of the indictment the defendant's prior record, disclosing three former convictions, one for robbery with firearms, and two others for burglary in the second degree? The answer obviously must be in the negative.

In answering the main question we are confronted by the preliminary inquiry, does the description in the caption control the nature of the offense charged in the indictment? That question likewise must be answered in the negative. In Caples v. State, 3 Okl.Cr. 72, 104 P. 493, 496, 26 L.R.A., N.S., 1033, this Court said:

'The caption of the cause is placed on the information for convenience, and for the purpose of ready identification, and constitutes no part of the information itself.'

Such is true in indictments.

In Miller v. State, Okl.Cr., 281 P.2d 441, 443, Jones, P. J., speaking for the Court, said:

'Although the caption placed on the indictment by the county attorney describes the crime as 'furnishing narcotics,' it is established law that the caption to the indictment does not control in determining the nature of the offense allegedly charged but the words stated in the body of the indictment must be considered in the light in which they are used to determine whether they charge an offense. Shiever v. State, 92 Okl.Cr. 239, 222 P.2d 530; Wilson v. State, 89 Okl.Cr. 421, 209 P.2d 512, 212 P.2d 144; Bristow v. State, 86 Okl.Cr. 97, 189 P.2d 629; Hulsey v. State, 86 Okl.Cr. 273, 192 P.2d 301.'

Hence, of necessity it must follow that the designation in the caption is not controlling of the charge as laid in the indictment.

Herein the indictment sufficiently charges the defendant only as a first and not as a subsequent offender after a former conviction. Such being the case, did the trial court have authority under the law to amend the indictment as above indicated, so as to bring it within the provisions of 21 O.S.1951 § 51, 'Second And Subsequent Offenses'? If such power exists it must be found in 22 O.S.1951 § 410, hereinafter set forth.

In Ex parte Williams, 70 Okl.Cr. 377, 106 P.2d 524, 525, this Court said:

'The common-law rule, both in England and in this country, was that it was beyond the power of the court to make, order, or permit any amendment of any nature to an indictment. The strict rule of the common law against amendments was occasioned, it has been said, by the harshness of the punishment for relatively minor offenses and the humane tendencies of the court to fix on any flaw in the indictment to protect persons convicted of crime from such harshness. 37 Am.Jur. 675.

'The common-law rule is set forth in the syllabus of the case of Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849, as follows:

"When this indictment is filed with the court, no change can be made in the body of the instrument by order of the court, or by the prosecuting attorney, without a resubmission of the case to the grand jury. And the fact that the court may deem the change immaterial, as striking out of surplus words, makes no difference. The instrument, as thus changed, is no longer the indictment of the grand jury which presented it.

"This was the doctrine of the English courts under the common law. It is the...

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  • Almendarez-Torres v. U.S.
    • United States
    • United States Supreme Court
    • 24 Marzo 1998
    ...104 P.2d 925, 930-933 (1940); State ex rel. Lockmiller v. Mayo, 88 Fla. 96, 98-99, 101 So. 228, 229 (1924); Roberson v. State, 362 P.2d 1115, 1118-1119 (Okla.Crim.App.1961), or as a matter of common law, see, e.g., People ex rel. Cosgriff v. Craig, 195 N.Y. 190, 194-195, 88 N.E. 38, 39 (190......
  • Parker v. Scott
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 5 Enero 2005
    ...indictment sufficiently outlined the charges against him, even under the older statute. See App. at 25 (citing Roberson v. Oklahoma, 362 P.2d 1115, 1117 (Okla.Crim.App.1961)). 7. Section 2254(e)(2) reads in its (2) If the applicant has failed to develop the factual basis of a claim in State......
  • G.E.D. v. State, J-87-785
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • 7 Marzo 1988
    ...for convenience, and for the purpose of ready identification, and constitutes no part of the information itself. Roberson v. State, 362 P.2d 1115, 1117 (Okl.Cr.1961). See also Shiever v. State, 92 Okl.Cr. 239, 222 P.2d 530, 534 (1950); Caples v. State, 3 Okl.Cr. 72, 104 P. 493, 496 (Okl.Cr.......
  • Klinekole v. State, F-77-329
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • 7 Diciembre 1977
    ...should have been dismissed, a new Information filed, and that a preliminary hearing be held anew, citing as authority, Roberson v. State, Okl.Cr., 362 P.2d 1115 (1961) and Carter v. State, Okl.Cr., 292 P.2d 435 (1956). In Roberson, supra, we held that the second and subsequent charge requir......
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