Vandiver v. State

• Decision Date: 23 September 1953
• Docket Number: No. A-11791,A-11791
• Citation: 97 Okla.Crim. 217,261 P.2d 617
• Parties: VANDIVER v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 617

261 P.2d 617

97 Okla.Crim. 217

VANDIVER v. STATE.

No. A-11791.

Criminal Court of Appeals of Oklahoma.

Sept. 23, 1953.

Syllabus by the Court.

1. To hold accused for trial, evidence at preliminary examination need not be sufficient to support conviction, but must merely show sufficient cause to believe accused guilty.

2. An information or indictment which, construed under the ordinary rules of construction, states all the essential elements of the crime charged sufficiently to enable a person of common understanding to know what is meant, and with sufficient particularity to enable a defendant to prepare for his trial, and to plead the judgment in bar if again informed against for the same offense, is sufficient.

3. 'Intent' denotes a state of mind which determines to do a particular act to effect a result.

4. Two general classes of 'intent' exist in the criminal law, a so-called 'general intent' which must exist in all crimes, and a further mental element known as the 'specific intent' which is essential to particular crimes.

5. The general criminal intent in crimes is presumed from the criminal act itself.

6. A specific intent in crimes is not presumed but is a matter of fact for the jury and must be established by the prosecution in the same manner as any other essential element.

7. Where the intent which is an element of the crime relates to a greater crime than that accomplished, the intent is not presumed from the act done.

8. At common law, 'kidnapping' consists of unlawful seizure and removal of person from his own country or state against his will.

9. To authorize conviction for 'kidnapping' within statute, it must be alleged and proved accused intended to secretly keep or detain person seized against his will. The gist of the charge is 'secret' confinement as distinguished from confinement in a public jail or mental institution. Tit. 21 O.S.1951 § 741, subd. 1.

10. Evidence that defendant while intoxicated, stopped his automobile by a bus stop in broad daylight, ostensibly to examine his rear casings, and while other persons were near, and then asked prosecutrix who was standing on sidewalk near the curb, if he could give her a lift, and on her declining asked her to go with him to get a bottle of beer, and then lifted and cradled her in his arms, stepping away from the car and across sidewalk against hedge where he put prosecutrix down when she began to kick and hit accused, and someone whistled, and accused got in his car and drove away, held insufficient to prove attempt to kidnap prosecutrix in absence of further evidence or circumstances of an intent to take and secretly confine or hold prosecutrix for some length of time.

11. Crime of assault, a misdemeanor, is included within felony of assault with intent to commit a felony: kidnapping. Tit. 21 O.S.1951, § 681; Tit. 21 O.S.1951 § 741.

12. Evidence found sufficient to establish the included misdemeanor of assault, and the judgment and sentence modified to the maximum punishment for such crime, of a fine of $100 and thirty days imprisonment in the county jail of Tulsa County. Tit. 22 O.S.1951 § 1066.

Coffey, Lassiter & Coffey, Tulsa, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., Lewis J. Bicking, County Atty., Tulsa County, Tulsa, for defendant in error.

POWELL, Presiding Judge.

Eugene Vandiver was tried and convicted by a jury in the district court of Tulsa County, where he was charged by information with the crime of assault with intent to commit a felony: Kidnapping. He was sentenced to serve one year in the county jail and to pay a fine of $500 and costs. The case is here on appeal.

The charging part of the information reads:

'* * * that Eugene Vandiver on the 12th day of September, A.D. 1951, [in Tulsa County] * * * did unlawfully, wilfully, wrongfully and feloniously commit the crime of assault with intent to commit a felony, to-wit: Kidnapping, by forcibly and without the consent of one Mrs. C. J. Bridges, grab her, and with force did seize Mrs. C. J. Bridges without lawful authority then and there attempting to place her in his automobile intending to secretly confine or imprison Mrs. C. J. Bridges against her will in this State, contrary to the form of the statutes * * *.'

Appellant argues all the allegations or errors set out in his petition in error under one proposition, rather than under separate specifications of error. Counsel would do well to comply with the rules of this court, Rule 7, 22 O.S.A. c. 18 Appendix, with reference to form and structure of briefs. Some of the points not necessary for a solution of the case will not be treated; others only briefly, as authorized by Tit. 20 O.S.1951 §§ 47, as amended, Laws 1953.

The argument of appellant that the court erred in not sustaining the demurrer and motion to quash based on the insufficiency of the evidence to bind the defendant over for trial and also his motion to suppress the evidence cannot be sustained. Only the prosecuting witness testified at the preliminary hearing. It is elemental that a person may be bound over at the preliminary hearing to answer the charge in the district court on evidence that would not be sufficient to support a conviction. It is our conclusion that probable cause was shown. Tit. 22 O.S.1951 § 171; McAllister v. State, Okl.Cr., 260 P.2d 454; Taylor v. State, 79 Okl.Cr. 115, 152 P.2d 123; Lyon v. State, 55 Okl.Cr. 226, 28 P.2d 598; McCurdy v. State, 39 Okl.Cr. 310, 264 P. 925.

We conclude from an examination of the information that it contains allegations covering every essential element of the crime of assault with intent to kidnap, and that the allegations are sufficient to apprise the accused of the nature of the charge, and the court did not err in overruling the demurrer to the information. McCoy v. State, 92 Okl.Cr. 412, 223 P.2d 778.

This brings us to the vital issue in the case where it is urged: 'The court further erred for the reason that the evidence was wholly insufficient to support the verdict, since there was a complete failure of an essential element of proof, that is, there is absolutely no evidence showing the defendant intended to secrete Mrs. Bridges but instead showed he intended to take her to buy a beer.'

The evidence developed that on the evening of September 11, 1951, at about 8:30 or 9 o'clock, Mrs. C. J. Bridges, age 23, a married woman and the mother of two children, was bodily picked up by the defendant and cradled in his arms. She had been standing at the northwest corner at the intersection of Thirteenth and Elgin, in Tulsa, waiting for a bus. Pertinent excerpts from her testimony are as follows:

'Q. Just tell us what you first noticed there. Just tell what was said, or what was done by you or others. A. I was standing alone, waiting on this bus and a car drove up, a light blue Buick, and stopped within about three feet from the curb. It didn't pull up to the curb and this man opened his door and stooped down and I supposed he was checking his rear tires and then he got up and walked up to me and he asked me if I wanted a lift, and I said 'No, I am waiting on the bus', and he just stooped down and picked me up and I started struggling with him and he had this left arm pinned down and I was hitting him with my first with my right arm in the head.

'Q. Now, that corner of that intersection is in Tulsa County, Oklahoma? A. Yes, sir.

'Q. Do you know whether anything further was said by you or this defendant? A. No, sir, that was all.

* * *

* * *

'Q. Where did he grab you? Whereabouts on your body? Show the jury the best you can where he grabbed you. A. He must have put his arm around my back and under my legs and picked me up in his arms.

* * *

* * *

'Q. Now another matter: Do you remember about how many times you hit the man? A. No, sir. I was just fighting him.

'Q. Do you know whether you finally broke loose or whether he set you down or whether he dropped you? A. He put me down.

'Q. He put you down? A. Yes, sir.

'Q. Prior to the time the defendant put you down, had you heard any other outcry or outside interference? A. While we were struggling, we fell back against some bushes and while we were back there and I was struggling to get down, this man started across the street and he whistled and that is when the man put me down.

'Q. After this other fellow whistled? A. Yes, sir, and he was coming towards us at the time he whistled. He was in a car across the street, catacornered from where we were and he got out of his car and started over there and he whistled and that evidently was when the man put me down.

'Q. He put you down immediately after he heard the whistle? A. Yes, sir.

* * *

* * *

'Q. Did you see any one else around there up to that point? A. I know I noticed before it happened, there was a man standing down on the other corner, about a block away, waiting on the bus.

'Q. That is on west on Thirteenth? A. Yes.

'Q. After you struggled and got over into the bushes and the man whistled and this man put you down, what next happened? A. He started chasing me.'

Witness stated that a man started rapidly walking over from across the street and other people commenced coming up and defendant got in his car and drove away.

On cross-examination witness stated that defendant drove up to within a yard of the curb where she was standing and stopped his car and leaned out of his car as if to look at his rear tire and then got out and went to the back of his car, looked at his tires, and he then stopped in front of her and asked if he might give her a lift, and offered to take her to get some beer. She further testified:

'Q. Did you go in any direction after he picked you up? A. Yes, sir.

'Q. Which way? A. Back.

'Q. Back away from the car? A. Yes, sir.

'Q. About how far backwards did you go? A. As far as the sidewalk.'

D. C. Kimbrall, an accountant, was across the street from the prosecuting witness and saw the defendant pick her up...