Simpson v. State
| Decision Date | 18 November 1919 |
| Docket Number | A-3302. |
| Citation | 185 P. 116,16 Okla.Crim. 533 |
| Parties | SIMPSON v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
A conviction in a felony case will not be reversed by reason of the fact that the record fails to show that the defendant was ever arraigned or waived arraignment, or that he pleaded to the information, where the record shows that the information was read by the county attorney to the jury, in the presence of the defendant and his counsel, and the jury informed by the county attorney that the defendant had entered a plea of not guilty thereto, and that the defendant proceeded to trial without objection. Held, further, that where the question is raised for the first time on motion for new trial, the defendant is bound by the verdict of the jury and will not be heard to say that he never pleaded to the information.
Objections to an indictment or information based upon the absence of any essential preliminary proceeding should be made by proper motion or plea, before entering a plea of not guilty.
Objections to the sufficiency of an indictment or information should be taken by a demurrer thereto, as provided by Code of Criminal Procedure (section 5791, Rev. Laws 1910). Our Code further provides: "When the objections mentioned in section 5791 appear upon the face of the indictment or information, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment." Section 5799, Rev. Laws 1910. Under this provision, if it appears that the facts stated do not constitute a public offense, an objection to the introduction of evidence on that ground is sufficient to raise the question.
Where a defendant fails to file a motion to set aside an information which was not signed by the county attorney at the time it was filed, and fails to interpose a demurrer thereto, 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.
On the trial of an information for shooting at another with a pistol, with intent to kill, the issue of shooting at another without intent to kill, but with intent to do bodily harm was submitted to the jury. The verdict was: "We, the jury, *** do upon our oaths find the defendant, S. H Simpson, guilty of assault with intent to do bodily harm, as charged in the information herein, and fix his punishment at confinement in the state penitentiary for a period of four years." Held, that the verdict is sufficiently definite and certain as to the offense of which the defendant was convicted.
Additional Syllabus by Editorial Staff.
In a prosecution for assault with intent to kill, declarations as to what was done and said by the complaining witness and a codefendant at an interview some hours before the shooting held admissible as part of the res gestae.
Appeal from District Court, Carter County; W. F. Freeman, Judge.
S. H Simpson was convicted of assault with a dangerous weapon with intent to do bodily harm, and he appeals. Affirmed.
Sigler & Howard, of Ardmore, for plaintiff in error.
S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
Upon this information the plaintiff in error, S. H. Simpson, alone was tried and convicted of an assault with intent to do bodily harm, and his punishment fixed at imprisonment in the penitentiary for the term of four years. From the judgment rendered on the verdict, he appeals.
It is first contended that the record fails to show that the plaintiff in error was ever arraigned or waived arraignment, or that he pleaded to the information. The record shows that, when the case was called for trial, both parties announced ready for trial; that, after the jury was impaneled, the information was read by the county attorney, who then stated to the jury that the defendant had entered a plea of not guilty. Then he made the opening statement of the case. Then Mr. Howard, counsel for the defendant, made his statement of the case, and the county attorney made a reply statement.
Under the provisions of the Code of Criminal Procedure, a defendant has the right to plead to the indictment or information. He may, in answer to the arraignment, either move the court to set aside the indictment or information, or may demur or plead thereto. In exercising this privilege the defendant is required to act in good faith. He cannot sit quietly by and say nothing about his failure to plead until after the verdict, and then complain. The necessity of a formal plea to an indictment or information is not a constitutional requirement, and, while it was a part of the procedure at common law, in this state it is statutory, and it is now well settled that a statutory right may be waived even in capital cases. If the defendant had not been arraigned and asked to plead, it was his duty to claim the right to plead before announcing ready for trial, which the record here shows that he did not do. The jury had been informed in his presence that he had pleaded not guilty, and, after the state had introduced its evidence and rested, he introduced his evidence and made his defense, the same as though his plea had actually been entered.
In the trial he saved his exceptions to the rulings of the court on other questions and claimed all of his legal rights. He had as fair and impartial trial as he could have had if the plea of not guilty had actually been entered. The issue of his guilt or innocence was tried, and he, without objection, participated in that trial, and is bound by its results.
It is also contended that the information did not state facts sufficient to constitute an offense, and that it was not signed by the county attorney until just before the trial started.
It does not appear from the record when the county attorney signed the information, and the first objection to the sufficiency of the information was made during the examination of the complaining witness, at which time the defendant objected to the introduction of testimony "for the reason that said information is not sufficient to charge an offense."
Objections to an indictment or information based upon the absence of any essential preliminary proceeding should be made by proper motion or plea, and objections to the sufficiency of the same should be taken by a demurrer thereto as provided by Code of Criminal Procedure (section 5791, Rev. Laws). An objection to an indictment or information on the ground that the facts stated do not constitute a public offense may be taken at the trial, under a plea of not guilty, and in arrest of judgment. Section 5799, Rev. Laws. Under this provision, if it appears that the facts stated do not constitute a public offense, an objection to the introduction of evidence on that ground is sufficient to raise the question. However, where the objection to an information for a defect of form apparent on the face thereof is raised for the first time by objection to the introduction of evidence, it comes too late, and...
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