Stokes v. State

• Citation: 189 P.2d 424,86 Okla.Crim. 21
• Decision Date: 14 January 1948
• Docket Number: A-10704.
• Parties: STOKES v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

189 P.2d 424

86 Okla.Crim. 21

STOKES v. STATE.

No. A-10704.

Court of Criminal Appeals of Oklahoma

Jan. 14, 1948

Opinion Modified on Rehearing March 3, 1948.

See 190 P.2d 838.

Appeal from District Court, Tulsa County; Leslie Webb, Judge.

Howard J. Stokes was convicted of arson in the first degree, and he appeals.

Modified and affirmed as modified.

Trial court should instruct only as to charge laid in information or indictment, the defense interposed and the testimony in the case.

Syllabus by the Court.

1. Under the provisions of § 20 of the Bill of Rights and the statutes of the State of Oklahoma, the true test of the sufficiency of an information is whether it alleges every element of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet.

2. It is fundamental that the trial court should submit to the jury the charge laid in the information defining the offense sufficiently to inform the jury what facts are necessary to establish in order to justify a verdict of guilty.

3. Where an information charges arson in the second degree but the case was tried and the jury instructed on the theory that the charge was arson in the first degree, such was error.

4. Under the provisions of Title 22 O.S.A. § 421, an omission to designate or error in designating an indictment for arson the owner or occupant of a building, shall not prejudice the proceedings thereon if it appears upon the whole description given of the building it is sufficient to enable the prisoner to prepare his defense.

5. Under the provisions of Title 22 O.S.A. § 915, the degree of guilt is to be found by the jury and where this is not done unless objection to the form of the verdict is interposed at the time it is returned and the court given an opportunity to have the jury correct it, every intendment and inference will be indulged to uphold it, and where from an examination of the verdict and the entire record the intent and purpose of the jury, as expressed in the verdict, may be clearly ascertained in will be upheld.

6. Failure of a verdict to name the degree of the offense of which the jury found the defendant guilty does not invalidate it, if, from the language of the verdict as a whole, no doubt can arise as to the offense of which he was convicted.

7. Under the provisions of Title 22 O.S.A. § 1068, 'No judgment shall be set aside or new trial granted by any appellate court of this State in any case, civil or criminal, on the ground of misdirection of the jury * * * unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.'

8. Instructions are to be examined in the light of the whole record and a case will not be reversed by reason of an error in instructions unless the error was such that it resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right.

9. Under the provisions of Title 22 O.S.A. § 1066, this court exercising its revisory jurisdiction has the power to modify, within the limits of the statutes, any judgment and sentence appealed from, in the furtherance of justice.

10. Held: Judgment and sentence should be modified to five years and as so modified, is affirmed.

Irvine E. Ungerman, of Tulsa, and T. Jack Tellegen, of Oklahoma City (Charles A. Whitebook of Tulsa, of counsel), for plaintiff in error.

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

BRETT Judge.

The defendant, Howard J. Stokes, was charged by information jointly with Russell Degen and George W. Jakeway with the crime of arson. Degen and Jakeway entered pleas of guilty and testified for the State. On the trial of Stokes, he was convicted of first degree arson and sentenced to 15 years in the penitentiary, from which conviction, judgment and sentence, he perfected this appeal.

The charging part of the information upon which the prosecution is based is in words and figures as follows to wit:

'* * * that Russell Degen, George W. Jakeway, Howard J. Stokes on the 3 day of January, A.D. 1945, in Tulsa County, State of Oklahoma, and within the jurisdiction of this court, did unlawfully, willfully, maliciously and feloniously, while acting in concert, each with the other, in the night time, set fire to and ignite and damage a certain building located at 14 South Lewis Avenue, in the City of Tulsa, Oklahoma, owned by Lottie May Winger, and being occupied by and in the possession of Harry Abdo, J. D. Summer, Wm. L. Neet and Roy Love, with the unlawful and felonious intent then and there upon the part of said defendants and each of them to destroy said building aforesaid, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.'

The statutes upon which the charge is grounded are as follows:

Title 21 O.S.A. § 1381, to wit: 'Arson is the wilful and malicious burning of a building, with intent to destroy it.'

Title 21 O.S.A. § 1390, to wit: 'Arson is divided into two degrees. Arson in the first degree is: 1. * * *. 2. Maliciously burning in the night time a structure adjoining to or within the curtilage of an inhabited building in which there is at the time some human being, and in such a way that such inhabited building is endangered * * *. 3. * * *. 4. * * *. Arson committed in any other way is arson in the second degree.'

Title 21 O.S.A. § 1391, to wit: 'Arson in the first degree is punishable by imprisonment in the penitentiary as follows: First. If committed as designated in the first paragraph of the foregoing Section (§ 1390 this title), for a term of not less than One (1) year, nor more than Thirty (30) years; Second. If committed as designated in the second, third or fourth paragraph of said Section, not less than One (1) year, nor more than Fifteen (15) years.'

Title 21 O.S.A. § 1392, to wit: 'Arson in the second degree is punishable by imprisonment in the penitentiary as follows: First. If committed in the night time, not less than One (1) year, nor more than Five (5) years; Second. If committed in the day time, not less than One (1) year, nor more than Five (5) years.'

The defendant first contends that the foregoing information states no offense as defined by the statutes of Oklahoma. It is pertinent to note that he points out no reason for this assertion. He then concedes that if it states any offense at all it is the crime of arson in the second degree. As to the latter statement, we are of the opinion there can be no doubt. He further contends that the information is insufficient upon which to warrant the court in instructing the jury in instructions four, five, and six on the theory of first degree arson. Moreover, he says it is insufficient to support the verdict, judgment and sentence of 15 years.

In our opinion the information clearly charges the crime of arson in the second degree. It is not sufficient, however, to charge arson in the first degree. It is apparent from the record that the case was tried and the jury instructed on the theory that first degree arson as defined under Title 21 O.S.A. § 1390, subsection 2, had been alleged in the information. To have supported such a theory it would have been essential that in addition to the allegations therein contained, that the information charge that the building burned was 'maliciously burned' and was 'an inhabited building in which there' was 'at the time some human being.' No such allegations appear therein. It is true that the information alleges the described premises were owned by Lottie May Winger and occupied by and in the possession of Harry Abdo, J. D. Summer, Wm. L. Neet, and Roy Love. Such an allegation is not tantamount to alleging that said building was an inhabited building in which, at the time of the alleged burning, there was a numan being, naming said person. To illustrate the importance of the said allegation, neither Abdo, Summer, Neet, nor Love were in the building when it burned, though they did occupy the same for business purposes in the operation of the Whittier Bar. On the other hand the record discloses that Doctor Fred C. Switzer and a Mr. Hogan actually inhabited and were sleeping in the house adjoining the bar. To further emphasize the importance of such an allegation, the bar had been erected adjacent to said house and two walls of said house formed two of the inside walls of the said bar when it was burned. In order for the information to have charged arson in the first degree under the circumstances herein involved, certainly it should have alleged that at the time of the burning of said Whittier Bar, the adjoining building was then inhabited by Doctor Switzer and Mr. Hogan.

Under our Constitution and statutes, to allege first degree arson as defined in Title 21 O.S.A. § 1390, supra, facts must be pleaded bringing the crime within the definitions therein contained in at least one of the four subdivisions of said statute. As hereinbefore indicated it is apparent that in the case at bar the court tried the crime as being charged within the provisions of subsection (2) of Title 21 O.S.A. § 1390 supra. Under this section, to try and convict the defendant on a charge of first degree arson in addition to the other essential elements the information must contain the allegation that the building was maliciously burned and adjoined another that was at said time then inhabited by a human being. This requirement is not an unreasonable one but is in keeping with the Constitution and statutory provisions with reference...