Roberts v. State
| Decision Date | 02 July 1941 |
| Docket Number | A--9800. |
| Parties | ROBERTS v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. A departure from the form or mode prescribed in the Code of Criminal Procedure in respect to any pleadings or proceedings or any mistake therein will not render a judgment of conviction invalid unless it has actually prejudiced the defendant or tended to prejudice him in respect to his substantial rights.
2. When an information is not signed by the county attorney, it fails to comply with the requirements of § 2829, O.S., 1931, 22 Okl.St.Ann. § 303; but under § 2956, O.S.1931, 22 Okl.St.Ann § 512, this defect can only be taken advantage of by demurrer, and cannot be raised after the defendant has entered his general appearance in court by pleading to the merits of the charge.
3. Jurisdiction of the subject-matter cannot be conferred by consent, and the want of such jurisdiction cannot be waived but jurisdiction of the person can be conferred by consent and the want of such jurisdiction is waived unless objected to in apt time.
4. Section 2829, O.S.1931, 22 Okl.St.Ann. § 303, directs that all informations shall be signed by the county attorney. This is required as a guaranty of good faith and to protect a defendant against prosecution by private parties without authority of law; but where a defendant pleads to an information which is not signed by the county attorney, and without objection goes to trial thereon, he waives all right to afterwards object to the information upon this ground, and cannot be heard upon appeal to complain that the information was not signed by the county attorney as directed by law.
5. An application to withdraw a plea of guilty is a matter addressed to the sound discretion of the trial court, and his action thereon will not be disturbed unless the record clearly shows an abuse of discretion.
6. It is improper for a man who has appeared as counsel for a defendant to later, after being elected county attorney appear on behalf of the state in the prosecution; and it is, also, highly improper for a person who filed the information against a defendant, as county attorney, to later, after his term as county attorney expires, appear as counsel for defendant. Such conduct may not be sufficient grounds for setting aside judgment, but is a proper matter for investigation by the State Bar.
7. The courts of Oklahoma are not to be trifled with; and where the record shows that defendant at various times during the proceedings, after the information was filed against him, employed five different attorneys to represent him and that each of said attorneys appeared in some stage of the proceedings and advised with defendant, securing for him many continuances and delays, this court will not disturb the ruling of the trial court in refusing permission to the defendant to withdraw his plea of guilty.
8. Where a plea of guilty is entered, the trial court may in his discretion question the defendant concerning the offense committed, his past conduct, and any other matter which might enlighten the court in connection with the offense charged, and thus better enable him to impose such reasonable sentence as is required by the facts in the case before him.
9. Record examined; and held, sentence pronounced not excessive, and judgment is affirmed.
Appeal from County Court, Garvin County; R. B. Garvin, Judge.
Herschel Roberts was convicted of the unlawful possession of intoxicating liquor, and he appeals.
Judgment affirmed.
For opinion on rehearing see 117 P.2d 174.
Marion Henderson, of Pauls Valley, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
The defendant, Herschel Roberts, was charged in the County Court of Garvin County with the crime of unlawful possession of intoxicating liquor. A plea of guilty was entered by the defendant, and he was sentenced by the court to serve forty-five days in the county jail and to pay a fine of $250 and costs, from which judgment and sentence he has appealed to this court.
On the date sentence was pronounced against the defendant, he filed a motion for permission to withdraw his plea of guilty, which motion was denied by the court and sentence pronounced. Subsequently and within the time provided by law, the defendant filed a motion for a new trial, which was overruled and exception allowed to defendant; and it is from the overruling of this motion for a new trial that an appeal has been taken to this court. Four propositions are raised in defendant's brief, and they shall be discussed in order of presentation.
It is contended that the conviction of a person under an information not signed by the county attorney is void for the want of jurisdiction of the trial court. In connection with this contention, it is stipulated by the parties that the county attorney's name, which appeared on the information filed against the defendant, was signed by his stenographer.
Several cases are cited in the brief of defendant in support of this proposition. A study of those cases discloses that in each instance the question of the insufficiency of the information was properly raised by a motion to quash or a demurrer prior to the time the defendant entered his plea to the merits of the case. While a reading of the syllabus of some of the cases cited by counsel for defendant would indicate that a judgment rendered on an information charging a misdemeanor is void, where the information is not signed by the county attorney, it is significant that this court has never made such a ruling except where the question is raised by proper objection before pleading to the merits.
This matter was first presented to the Criminal Court of Appeals in the case of Brown v. State, 9 Okl.Cr. 382, 132 P. 359. Judge Furman discussed this question at length in that case, and his opinion is sound. Under the reasoning of that case, there would be no distinction so far as the signing of the information is concerned between a felony and a misdemeanor. It was therein held:
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Landon v. State
... ... informations shall be signed by the County Attorney. 22 ... O.S.1941 § 303. However, this requirement that an information ... be signed by the County Attorney is one that may be waived ... and is waived where the defendant goes to trial without ... raising this question. Roberts v. State, 72 Okl.Cr ... 384, 115 P.2d 270, 271 ... Since ... the question now urged by defendant is raised for the first ... time on appeal, we feel that, under the authority of the ... cases above set forth, this court is bound to hold adversely ... to the defendant's ... ...
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