Schoolcraft v. State

• Decision Date: 19 March 1947
• Docket Number: A-10644.
• Citation: 178 P.2d 641,84 Okla.Crim. 20
• Parties: SCHOOLCRAFT v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

178 P.2d 641

84 Okla.Crim. 20

SCHOOLCRAFT v. STATE.

No. A-10644.

Court of Criminal Appeals of Oklahoma

March 19, 1947

Appeal from the District Court, Custer County; W. P. Keen, Judge.

Raymond Schoolcraft was convicted of crime of riot, and he appeals.

Modified and affirmed.

Syllabus by the Court.

1. Any use of force or violence, or any threat to use force or violence if accompanied by immediate power of execution, by three or more persons acting together and without authority of law, is riot.

2. Under Oklahoma Statute (21 O.S. 1941 § 1312) the punishment for riot is fixed according to the circumstances under which the participants committed the crime.

3. A defendant may be called upon to defend against only one offense at a time and the information must be definite and certain as to the offense charged.

4. An information which charges two separate and distinct offenses not based upon the same transaction, is bad for duplicity and demurrer thereto should be sustained.

5. Where three individuals become partially intoxicated and with force and violence assault other parties at various places over a period of four or five hours and finally beat a man so severely at a night club that he died several days later, each of the assaults which they make constitutes a distinct offense of riot and where all of the various assaults which are made by the accused on different individuals are set forth in one information the same is duplicitous.

6. Under statutory definition of a riot (21 O.S. 1941 § 1311) it is possible to charge the crime of riot and secure a conviction therefor without either alleging or proving an antecedent unlawful assembly out of which the riot grew.

7. Various assaults made by three defendants accused of riot at a night club at about the same time, are admissible in evidence against the accused where they are so closely connected in point of time as to be a part of the res gestae and to further show a concerted action by the three to do an unlawful act.

8. Action of trial court in overruling a demurrer to the information based on duplicity was harmless error, where State relies upon one of said acts for a convi- ction and the other acts are admissible in evidence as a part of res gestae and to show concerted action on part of the three persons accused of riot.

9. Record examined and evidence found sufficient to sustain conviction for riot. Held further, that ends of justice require that punishment be modified from life imprisonment to twenty years imprisonment in the State Penitentiary.

Meacham, Meacham & Meacham and Arney & Barker, all of Clinton, for plaintiff in error.

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

JONES Judge.

The defendant, Raymond Schoolcraft, was jointly charged by an information filed in the District Court of Custer County, with Edward Duggins, Ephie Humphrey and Robert Strong, with the crime of riot; a severance was granted, the defendant Schoolcraft was tried, convicted and sentenced to serve a life term in the State Penitentiary and has appealed.

The principal assignment of error presented by counsel for defendant is that the amended information filed against the defendant was duplicitous as charging a number of distinct offenses and for that reason the Court erred in overruling the demurrer of the defendant to the amended information.

Omitting the formal parts, the amended information filed against the defendants, reads as follows:

'That on or about the date aforesaid, in the County and State aforesaid, the said Raymond Schoolcraft, Edward Duggins, Ephie Humphrey and Robert Strong did unlawfully, willfully, wrongfully, feloniously and riotously assemble in said County with the common design and intent, and acting together, to use force and violence against numerous and sundry persons in said County and State; and in pursuance of said design and intent, the said Raymond Schoolcraft, Edward Duggins, Ephie Humphrey and Robert Strong, acting together and with a common design and intent, did unlawfully wilfully, wrongfully, feloniously and riotously go to a place in Clinton, Custer County, Oklahoma, known as Joe's Bar, the same being located on 4th Street, and did then and there commit an assault and battery up one Joe Redmond, and did strike, beat and hit the said Joe Redmond with their fists; and the said Raymond Schoolcraft, Edward Duggins, Ephie Humphrey and Robert Strong did leave said Joe's Bar when they had accomplished their said purpose, and did unlawfully, wilfully, wrongfully, feloniously and riotously, proceed to a place near the intersection of 5th Street and Frisco Avenue, and did then and there, acting together and with a common design and intent, commit an assault and battery upon three (3) sailors, whose names to this informant are unknown and did strike, beat and hit said sailors with their fists and did knock one of said sailors down on the ground; and as a part and parcel of the same transaction, and with a common design and intent, and acting together, the said Raymond Schoolcraft, Edward Duggins, Ephie Humphrey and Robert Strong did unlawfully, wilfully, wrongfully, feloniously and riotously proceed to a night spot, a place known as the Rainbo Night Club, located about a mile or a mile and a half southwest of the City of Clinton on Highway 66 in said County and State, travelling in an automobile with a loaded shotgun and a pistol therein, and did then and there, acting together as aforesaid, and with the common design and intent as aforesaid, proceed to commit an assault and battery upon one, Harold Frans, and did then and there knock the said Harold Frans down on the ground; and the said Raymond Schoolcraft, Edward Duggins, Ephie Humphrey and Robert Strong did then and there hold in their hands a weed cutter with an iron handle about two and a half (2 1/2) ft. long, with a blade about four (4) ins. long; and an iron pipe one (1) in. in diameter and about eighteen (18) ins. long, wrapped with heavy copper wire; and a club about two (2) ins. in diameter and about two (2) ft. long, and they did then and there, with said weapons held in their hands as aforesaid, strike, beat, kick and stomp the said Harold Frans, and did cause severe bruises and wounds upon the face, head, and body of the said Harold Frans; and at the same place and as a part and parcel of the same transaction, they did unlawfully, wilfully, wrongfully, feloniously and riotously make an assault and battery upon one, Jo Frans, the wife of Harold Frans, and did hit her on the head with said iron pipe and did strike her with said weed cutter and did knock her on the ground, and did inflict a serious and dangerous wound upon the head of her, the said Jo Frans, and other wounds upon the face and body of her, the said Jo Frans, and did stomp her with their feet; and at the same place, and as a part and parcel of the same transaction, and acting together, and with a common design and intent, the said Raymond Schoolcraft, Edward Duggins, Ephie Humphrey and Robert Strong did then and there unlawfully, wilfully, wrongfully, feloniously and riotously, and without authority of law, and with the premeditated design to efrect the death of one Guy Pollett, make an assault and battery in and upon the said Guy Pollett, and did hit him on the head with a club then and there held in the hands of them, the said Raymond Schoolcraft, Edward Duggins, Ephie Humphrey and Robert Strong, and did knock him down on the ground and did kick him on the head with their feet and did stomp the said Guy Pollett on the head and in the face with the feet of them the said Raymond Schoolcraft, Edward Duggins, Ephie Humphrey and Robert Strong, and did hit the said Guy Pollett with an iron pipe and weed cutter then and there held in the hands of the said Raymond Schoolcraft, Edward Duggins, Ephie Humphrey and Robert Strong, and did fracture the skull of the said Guy Pollett thereby inflicting mortal wounds upon the face, neck, head and body of the said Guy Pollett, and the said Guy Pollett did from said wounds linger, and lingering did die on or about the 6th day of November, 1944, as was intended by them, the said Raymond Schoolcraft, Edward Duggins, Ephie Humphrey and Robert Strong, and in the course of said riot, the said Raymond Schoolcraft, Edward Duggins, Ephie Humphrey and Robert Strong, did kill and murder the said Guy Pollett in the manner and form as aforesaid; and at the same place, and as a part and parcel of the same transaction, and acting together with the common design and intent, the said Raymond Schoolcraft, Edward Duggins, Ephie Humphrey and Robert Strong did unlawfully, wilfully, wrongfully, feloniously and riotously make an assault and battery upon one, Frank Sturgis, and did kick the said Frank Sturgis in the back and did knock him down on the ground, and did stong him with their feet; and at the same place, and as a part and parcel of the same transaction, and acting together with a common design and intent, the said Raymond Schoolcraft, Edward Duggins, Ephie Humphrey and Robert Strong did unlawfully, wilfully, wrongfully, feloniously and riotously make an assault and battery in and upon the person of one, Pat Bradford, and did hit him on the head with some blunt instrument to this informant unknown; and at the same place, and as a part and parcel of the same transaction, and acting together with the common design and intent, they did unlawfully, wilfully, wrongfully, feloniously and riotously make an assault and battery upon one, L. O. Magee, and did strike him in the face with some instrument to this informant unknown; that during the commission of said acts of force and violence, and after the said Harold Frans, Jo Frans, Frank

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