Tharpe v. State

• Decision Date: 01 March 1961
• Docket Number: No. A-12964,A-12964
• Parties: Theodore THARPE, Jr., Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 232

358 P.2d 232

Theodore THARPE, Jr., Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.

No. A-12964.

Court of Criminal Appeals of Oklahoma.

March 1, 1961.

Syllabus by the Court

1. An information is sufficient which states the offense clearly and distinctly in ordinary and concise language, without repetition, in such manner as to enable a person of common understanding to know what is intended.

2. Where the defendant enters his plea of not guilty and waits until the jury has been empaneled and sworn, and then for the first time questions the sufficiency of the information by objecting to the introduction of evidence on the ground of such insufficiency, the objection should be overruled if by any reasonable construction or intendment the information can be sustained.

3. The fact that the defendant was under arrest and was not advised that any statement made by him might be used against him will not affect the admissibility of any voluntary statement made by him which would otherwise be competent.

4. In a prosecution for assault with a sharp and dangerous weapon with the intent to do bodily harm, it is the duty of the court to submit to the jury instructions upon every degree of assault which the evidence in any reasonable view of it suggests.

Plaintiff in error, Theodore Tharpe, Jr., was tried and convicted in the District Court of Garfield County, Oklahoma, for the offense of assault with a dangerous weapon, and was sentenced to serve one year in the State Penitentiary at McAlister, from which judgment and sentence plaintiff in error appeals. Affirmed.

Paul R. Haunstein, Enid, for plaintiff in error.

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

BUSSEY, Judge.

On the 17th day of March, 1960, plaintiff in error, Theodore Tharpe, Jr., hereafter referred to as defendant, an airman stationed at Vance Air Force Base, Enid, Oklahoma, visited Elmer's Grill at 511 South Third Street in Enid. While in this restaurant he met Billie Jo Wilson who testified at the trial that on this occasion Tharpe came up behind her and struck her on the posterior, and that she indicated her displeasure at being so struck. Thereafter, an altercation occurred and Tharpe was struck over the head with a glass bottle by one of the patrons. It is not entirely clear from the evidence who Tharpe's assailant was, but there is some evidence that the prosecutrix, Billie Jo Wilson, wielded the bottle.

Thereafter, according to the testimony of several witnesses, the prosecutrix turned and walked away from the defendant, and he produced a knife and struck her, inflicting a three inch laceration just above her ear. The prosecutrix was then taken to the hospital and Tharpe returned to Vance Air Force Base.

On the 18th day of March, 1960, a charge of assault with a dangerous weapon was filed against Tharpe and a warrant issued for his arrest. Deputy Sheriffs McFaddin and Porter went to the Air Force Base, where they talked with Technical Sergeant Charles J. McNatt, who then called Tharpe to his office. The defendant was not advised of his constitutional rights but was asked what had happened. He replied that his girl friend had struck him with a bottle and that he had lost his head and cut her with his knife. When asked about the weapon used, Tharpe went to his locker and produced a black mechanic's knife with two blades one and three-fourths inches long and one blade two and three-eighths inches long.

The defendant was charged by information as follows:

'On or about the 17th day of March, A.D. 1960, in said County of Garfield, State of Oklahoma, one Theodore Tharpe, Jr., did then and there unlawfully, willfully and feloniously commit assault and battery upon the person of another, to wit: Billie Jo Wilson, with a sharp instrument, to wit: a knife, then and there cutting the said Billie Jo Wilson and inflicting great and serious bodily injury upon the person of Billie Jo Wilson without justification or excusable cause, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Oklahoma.'

The defendant did not demur to the information, but after the jury was empaneled and sworn and opening statement made, counsel for defendant objected to the introduction of evidence for the reason that 'the court is without jurisdiction here to determine this case, in that the same charges only a misdemeanor, of Assault and Battery.' Said objection was overruled and the evidence was offered and submitted to the jury, who returned a verdict of guilty of the crime of assault with a dangerous weapon and assessed punishment at one year in the State Penitentiary. Motion for a New Trial was overruled, and a timely appeal was lodged in this court.

The first contention of defendant is that the information charged merely an assault and battery. If the defendant had any question as to whether he was about to be tried for an assault with a dangerous weapon or for a mere assault and battery, he should have raised the objection by demurrer to the information before announcing ready for trial; otherwise the objection was waived. Cotton v. State, 22 Okl.Cr. 252, 210 P. 739.

In White v. State, 4 Okl.Cr. 143, 111 P. 1010, this court set forth the rule that where the defendant enters his plea of not guilty and waits until the jury has been empaneled and sworn, and then for the first time questions the sufficiency of the information by objecting to the introduction of evidence on the ground of such insufficiency, the objection should be overruled if by any reasonable construction or intendment the information can be sustained. See also Edwards v....