Shiever v. State, A-11220
| Decision Date | 20 September 1950 |
| Docket Number | No. A-11220,A-11220 |
| Citation | 92 Okla.Crim. 239,222 P.2d 530 |
| Parties | SHIEVER v. STATE. |
| 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 matters of either form or substance when it can be done without prejudice to the substantial rights of the accused.
2. 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.
3. The introductory paragraph of an information is ordinarily equivalent to a mere descriptive label, and a wrong name given to the crime in that part of an information is an irregularity only and not fatal. The character of the offense must be determined by a consideration of the language contained in the charging part of the information.
4. Where information charges defendant with illegal possession of liquor after two prior convictions for violations of the prohibitory liquor laws the trial court acted properly in submitting the punishment defined by Tit. 37 O.S.1941 § 12 and not the punishment provided by Tit. 37 O.S.1941 § 14.
5. The evidence, although wholly circumstantial, was sufficient to sustain conviction for illegal possession of intoxicating liquor.
Rutherford H. Brett, J. W. Murphy, Oklahoma City, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
The defendant, Ed Shiever, was charged by an information filed in the District Court of Payne County with the crime of unlawful possession of intoxicating liquor, after having been twice previously convicted for the unlawful possession of intoxicating liquor; was tried, convicted, and sentenced to serve ninety days in the county jail and pay a fine of $50, and has appealed.
The first assignment of error is that the court erred in forcing the defendant to trial on the amended information over defendant's objection and request for time to plead.
The original information is not contained in the case-made and the only statement we have to guide us in determining this assignment of error is the statement of the trial court which was made at the time the amended information was filed. In this connection the record discloses:
'Mr. Simcoe: For the sake of the record, I also like to ask the Court that this case be stricken from the present assignment for the reason that this amended information on which they intend to prosecute the defendant was just filed at the time of calling the jury and we had no notice of the filing of such amended information.
'By the Court: Is it just an amendment as to form?
'By the County Attorney: It's an amendment as to form, if the Court please, we set out more fully the previous convictions.
'By the Court: Overruled.
'By Mr. Simcoe: Further reason, the defendant has had no opportunity to examine the same to be informed of the charge contained in the amended information for the reason it was not the information upon which he was arraigned and upon which he prepared for trial.
'The County Attorney: Yes, sir.
'By the Court: Is the defendant ready?
'Mr. Simcoe: Yes, sir.'
From the statement of the court it is evident that the amendment to the information was one as to form so as to more clearly set forth the prior convictions of defendant.
In the case of Herren v. State, 72 Okl.Cr. 254, 115 P.2d 258, 259, this court stated:
In Jenner v. State, 72 Okl.Cr. 232, 114 P.2d 956, it was held: 'The burden is upon the defendant to show that the trial court abused his discretion in allowing an information to be amended as to form after the case has been called for trial or that such amendment materially prejudiced the defendant.'
See also Butler v. State, 78 Okl.Cr. 133, 145 P.2d 215; Conway v. State, 84 Okl.Cr. 118, 179 P.2d 699.
In view of these decisions and many others it is evident that the trial court did not abuse his discretion in refusing to strike the case from the assignment because of the filing of the amended information on the date of the trial.
It is next contended that the verdict of the jury was contrary to the evidence. James Arrendell testified that on September 9, 1947 he met defendant near the corner of the Anthony store in the city of Stillwater; that during a conversation with defendant, Arrendell asked him where he might get a bottle of gin, to which the defendant replied that he might know where there was some; that defendant then got into the car with the witness and directed him to drive out to the end of Husband street, then turn to the right and they continued on that road to the east until they crossed the railroad track, that immediately after crossing the railroad track defendant said 'pull over and stop'; that the witness stopped his car; that defendant got out of the door on the right side of the car and the witness got out on the left; that the witness went to one side of the road and the defendant to the other side; that the witness had his back to the defendant and his attention was first called to the fact that a deputy sheriff had arrived by hearing a conversation between the defendant and the deputy sheriff; that the witness turned around and saw deputy sheriff Ralph White pick up a fifth of gin which was lying at the feet of the defendant. On cross-examination the witness stated that he never did see the defendant with any intoxicating liquor at all and that they had not agreed upon the price that would be paid for the liquor, but that he had driven out to where they had stopped at defendant's direction for the purpose of buying the liquor. The witness further stated that the bottle of gin which was exhibited to him appeared to be a cleaner bottle than the one that he saw in the possession of the deputy sheriff on the night in question.
Ralph White testified that on the night of September 9, 1947 while in his automobile he saw a car approaching a railroad embankment; that it went out of sight momentarily and never did appear in the road; that he wondered what had happened and drove over there; that as he arrived he saw...
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Roberson v. State
...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, ......
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...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, ......
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