State v. Hollis

• Decision Date: 21 July 1954
• Docket Number: No. A-12014,A-12014
• Citation: 1954 OK CR 98,273 P.2d 459
• Parties: STATE v. HOLLIS.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 459

273 P.2d 459

STATE v. HOLLIS.

No. A-12014.

Criminal Court of Appeals of Oklahoma.

July 21, 1954.

Syllabus by the Court.

1. An automobile when used in such a manner as is likely to produce death or great bodily harm is a dangerous weapon within the meaning of Title 21 O.S.1951 § 645.

2. Under a statute which defines a single crime, but which may be committed in a number of different ways, an information may be drawn setting out the different ways in a single count, and will not be duplicitous, if there is a readily perceived connection between things charged.

3. The test as to whether an information is duplicitous is whether information charges more than one crime or whether it defines a single crime which may be committed in a number of ways. If it charges more than one crime in one count, the information would be bad for duplicity, but it is permissible to charge a single crime and set forth different acts which may constitute the manner and way in which the accused allegedly committed the offense.

4. Matter that constitutes surplusage should have been reached by a motion to strike and should not have been made the basis for demurrer as an attack upon the sufficiency of the information where the information clearly charged exclusive of said expressions of surplusage an offense defined by statute.

5. It is not required that the exact time of the commission of an offense be set forth in the indictment or information, except where time is a material ingredient of the offense so long as it is charged the offense was committed within the 3 years prior to the filing of the information.

6. In a charge of assault with a dangerous weapon, it is not necessary to charge the offense was committed in any particular place, it is only necessary to allege and prove that the offense was committed within the county as alleged in the information.

7. In a criminal case the state may appeal to this court: First, from a judgment setting aside an indictment or information; second, upon an order of court arresting judgment; and, third, upon a question reserved by the state. Where the judgment quashing or setting aside the information contains an order discharging the defendant, the appeal from the judgment is upon a question reserved by the state, for the reason that the defendant has been discharged and cannot be compelled to respond to any further orders in the proceeding, when so discharged the case as to him is at an end. The appeal then is on a naked question of law. But if the defendant be not ordered discharged, he must abide the further orders of this court on appeal, as well as any subsequent proceedings in the case in the trial court.

Leroy Vick, County Atty., Cheyenne, Mac Q. Williamson, Atty. Gen., for plaintiff in error.

Orval Grim, Sayre, for defendant in error.

BRETT, Judge.

The plaintiff in error Betty Hollis, defendant below, was charged by information in the district court of Roger Mills county, Oklahoma, with having committed the crime on the 6th day of March 1953 of assault and battery with a deadly weapon, to wit, by means of a 1950 model automobile. To the information a demurrer was filed, presented and sustained with exceptions on September 23, 1953, whereupon the county attorney elected to stand on the information and declined to plead further, upon which declaration the trial court dismissed the information, without discharging the defendant, fixed the time for the county attorney to perfect his appeal, released the defendant on his bond then in effect, pending the outcome of the appeal. The journal entry of judgment recites the foregoing matters and things but it does not give any reason as to why the information was insufficient, nor does the record show any. The charging part of the said information reads as follows, to wit:

'That the said Betty Hollis then and there being did unlawfully, wilfully, feloniously, without justifiable or excusable cause, make an assault upon the person of one Leroy Vick, by the means of such force as was likely to produce death with a dangerous weapon, towit; one 1950 model Buick automobile, bearing Texas license plates for year 1952, AT 1483, which the said Betty Hollis was driving and propelling in a reckless and dangerous manner while the said Betty Hollis was transporting whiskey and resisting arrest, and did then and there strike the body of Leroy Vick with such force as was likely to produce death and serious bodily injury, and did bruise and injure the left leg in the way and manner aforesaid; with the unlawful and felonious intent on the part of Betty Hollis to injure Leroy Vick and do him great bodily harm and injury, * * *.'

The information was predicated upon the provisions of Title 21 O.S.1951 § 645, reading in words and figures as follows, to wit 'Every person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or air gun or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year.'

It is apparent that the information herein involved was drawn in manner and form to comply with the allegations contained in the case of Beck v. State, 73 Okl.Cr. 229, 119 P.2d 865, 866, wherein it was said in syllabus 1:

'An automobile when used in such a manner as is likely to produce death or great bodily harm is a dangerous weapon within the meaning of sec. 1870, O.S.1931, 21 Okl.St.Ann. § 645.'

In the body of the opinion the information therein reads as follows, to wit:

"* * * that Otho Beck on the twenty-eighth day of November, A.D., 1939, in Tulsa County, State of Oklahoma, and within the jurisdiction of this court, did unlawfully, willfully and feloniously commit an assault and batter upon the person of one Richard Paris, by means of such force as was likely to produce death; that is to say, the defendant was driving and propelling a 1938 Ford coupe automobile in a dangerous and reckless manner while under the influence of intoxicating liquor; and at the intersection of 9th street and Cincinnati Avenue in the City of Tulsa, then and there driving and propelling said automobile over and against the body and person of the said Richard Paris, then and there throwing and hurling him against an automobile and to the street and pavement, severing his right thumb and otherwise bruising, wounding and injuring him, the said Richard Paris, in the way and manner aforesaid; with the unlawful and felonious intent then and there upon the part of the said defendant, Otho Beck to injure the said Richard Paris, and do him great bodily harm and injury * * *."

At pages 232, 233 of 73 Okl.Cr., at page 868 of 119 P.2d it was said:

'This court in the case of Winkler v. State, 45 Okl.Cr. 322, 283 P. 591, and in the case of Lamb v. State, 70 Okl.Cr. 236, 105 P.2d 799, has specifically held that where an automobile is being operated in a manner forbidden by law, and the proof shows that the accused, while so operating the automobile, ran into and injured a person lawfully on said highway, that the operation of the automobile in such manner takes the place of and supplies the unlawful intent. In each of these cases, this court sustained convictions for assaults committed with an automobile.

'Defendant contends that the rule in Winkler v. State, supra, and Lamb v. State, supra, is erroneous and that those decisions should be specifically overruled.

'While no authorities have been cited by counsel for defendant in support of their argument and no brief has...