White v. State

• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Writing for the Court: BESSEY, J.
• Citation: White v. State, 214 P. 202, 23 Okla. Crim. 198 (Okla. Crim. App. 1923)
• Decision Date: 14 April 1923
• Docket Number: A-3909.
• Parties: WHITE v. STATE.

214 P. 202

23 Okla.Crim. 198

WHITE v. STATE.

No. A-3909.

Court of Criminal Appeals of Oklahoma

April 14, 1923

Syllabus by the Court.

When the county attorney, after the commencement of the trial asked leave to amend the original information, and the amendment describing the property was made by leave of court and the defendant asked and was given leave to plead over to the amended information, and a continuance was granted for that purpose, and no objection was interposed to the discharge of the jury, the accused, under such circumstances waived his right, if any he had, to claim former jeopardy. The discharging of the jury to enable the defendant to plead over and prepare to meet the amendment made did not operate as an acquittal.

If an accused announces ready for trial, with full knowledge that he has not been accorded some constitutional privilege, in this case the privilege of claiming former jeopardy, the right to claim it will be deemed waived. He cannot later shift his position and reclaim the right.

Where a constitutional right is for the sole benefit of the accused, in the nature of a privilege, that right may be waived by express consent; or by implication, from conduct indicative of consent; or by failure to claim or assert the right in seasonable time.

Where the information states the date, the place, and the names of the persons from whom the stolen property was received, and by whom received, but fails to describe the property, the information is not void in the sense that it may not be amended to specifically describe the property; and such an amendment may be made, with proper safeguards, after the jury have been qualified.

The fact that the original information was adjudged insufficient for want of descriptive averments, and that the defendant was subsequently confronted with a new or amended information, does not of itself give him the right to demand another preliminary hearing. The same offense was described in both informations. The preliminary examination was sufficient to support the information on which he was tried and convicted.

Averments necessary to charge larceny are not essential in an information charging the felonious receiving of stolen property, based on section 2113, Comp. St. 1921. In such an information it is not necessary to state the ownership of the property.

The claim made that the amended information did not conclude with the words "against the peace and dignity of the state of Oklahoma," examined, and held untenable.

The mere fact that two of the state's witnesses stole the property and the defendant received it, knowing it to be stolen, would not make the witnesses accomplices of the defendant. The stealing of property and the receiving of stolen property are two separate offenses, and the perpetrator of one offense is not necessarily an accomplice of the perpetrator of the other.

The jury, under the evidence and the instructions of the court, were called upon to decide whether two of the state's witnesses were accomplices of the accused, and, if accomplices, whether their testimony was sufficiently corroborated. Held, that in either event the evidence was sufficient.

Appeal from District Court, Oklahoma County; Edward D. Oldfield, Judge.

Isadore White was convicted of receiving stolen property, and he appeals. Affirmed.

G. A. Paul, of Oklahoma City, for plaintiff in error.

The Attorney General, and N.W. Gore, Asst. Atty. Gen., for the State.

BESSEY J.

Isadore White, plaintiff in error, here referred to as the defendant, was in the district court of Oklahoma county, on July 10, 1920, convicted of the crime of fraudulently receiving stolen property. His punishment was by a verdict of the jury fixed at confinement in the county jail for a period of six months and to pay a fine of $250. From the judgment on this verdict he appeals.

There were a number of unusual proceedings connected with the trial of this case, portions of which were had before three different judges. In the preliminary information the defendant was charged with knowingly and fraudulently receiving stolen property, without in any way describing the property received or stolen. A preliminary trial was had before an examining magistrate and the defendant held for further proceedings in the district court. In due course a like information, containing no description of the property whatever, was filed in the district court, the sufficiency of which was challenged by a demurrer stating: (1) That the information did not conform to the requirements of the Code or Criminal Procedure; (2) that the information did not state facts constituting a public offense; and (3) that more than one offense was attempted to be stated in the information. The demurrer was by the court overruled and an exception allowed the defendant.

The cause first came on for trial in district court on the original information on April 15, 1920. A jury was called and qualified and a witness called, sworn, and took the witness stand to give his testimony for the state (Record, p. 24). The defendant then objected to the introduction of testimony for reasons not affirmatively appearing of record, but presumably for the same reasons urged in the demurrer, i. e. because no property whatever was described in the original information. The court sustained this objection.

The county attorney then asked and was given leave to amend the information. Accordingly, the information was amended by incorporating in it a detailed description of the property alleged to have been stolen and feloniously received. The defendant then asked and was given 24 hours in which to plead to the amended information. The jury theretofore impaneled was without any objection discharged from further consideration of the cause. On April 19th the defendant filed a plea in bar, claiming former jeopardy in the proceedings had on the original information, which motion or plea was by the court overruled and the cause reset for trial on May 26, 1920. On May 28th a trial was had on the issues raised by the amended information, resulting in a disagreement of the jury on May 31st. Subsequently, the cause was again called for trial on July 8, 1920. On this day a third jury was impaneled and qualified. A witness was called and sworn on behalf of the state. After the county attorney had propounded a question to the witness, the defendant objected to the introduction of any evidence for the following reasons:

First. That the amended information does not state facts sufficient to constitute a public offense or to charge the offense of knowingly receiving and buying stolen property or knowingly receiving or buying stolen property.

Second. That this court is without jurisdiction to try and determine the issues in this case for the reason that there is no legal and valid information pending against this defendant.

Third. Because the said amended information is invalid and illegal in that it was an amendment permitted by the court to an information that was invalid and defective, and was so permitted over the objection and exception of the defendant.

Fourth. For the reason that said defendant desires to offer proof in support of the allegations of this objection as to the defective and invalid and void amended information herein.

Fifth. As a part of this objection the defendant offers his plea and motion filed on April 19, 1920, claiming former jeopardy.

Is an information charging the receiving of stolen property, in which no description whatever appears of the property said to have been stolen and received, defective to such an extent that it would not support a conviction after trial? Where the information states the date, the place, and the persons from whom the stolen property was received, but fails to describe the property, the information is not void in the sense that it may not be amended in such a way as to specifically describe the property. Enough has been stated to apprise the accused of the nature and character of the offense charged, and of the time and circumstances of its commission, and in that sense it may be regarded as voidable and not absolutely void. Section 2512, Comp. Stat. 1921, provides:

"An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit."

When the county attorney asked leave to amend the original information and amendment describing the property was made by leave of court, and the defendant asked and was given time to plead to the amended information, and interposed no objection to the discharge of the jury, under such circumstances the accused waived his right, if any he had, to claim former jeopardy. Allen v. State, 13 Okl. Cr. 533, 165 P 745, L. R. A. 1917E, 1085; Bohannan v. State, 11 Okl....