Williams v. State, F-77-644

• Decision Date: 27 April 1978
• Docket Number: No. F-77-644,F-77-644
• Citation: 579 P.2d 194
• Parties: Virgil WILLIAMS, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 194

579 P.2d 194

Virgil WILLIAMS, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-77-644.

Court of Criminal Appeals of Oklahoma.

April 27, 1978.

Rehearing Denied May 8, 1978.

An appeal from the District Court, Seminole County; Frank H. Seay, judge.

Virgil Williams, appellant, was convicted of the offense of Lewd Molestation; was sentenced to fifteen (15) years' imprisonment, and appeals. AFFIRMED.

Hubert Hargrave, Wewoka, for appellant.

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., Clifford E. Briery, II, Legal Intern, for appellee.

OPINION

CORNISH, Judge:

Virgil Williams has appealed to this Court from his conviction in the District Court, Seminole County, of Lewd Molestation. He contends that the trial court committed error in the following particulars: First, that the information was duplicitous, charging more than one crime; second, that the information was not written in ordinary and concise language so that a person of ordinary understanding would know what was intended; and third, that the District Attorney should not have been allowed to dismiss the charge against the appellant as to one of the alleged victims at the close of the State's case. We affirm.

At the trial the State presented evidence that the appellant asked L. P., a 13-year-old boy, to help him paint his home. The boy's father agreed, and L. P. and the appellant went to the appellant's house. L. P. testified that when they entered the house the appellant grabbed him by the arm, shoved him into a chair, pulled his pants down and committed an act of fellatio. The boy further stated that the appellant gave him five dollars to come back at some later time and paint, and that the appellant threatened to cut his throat if he told anyone about the incident. The appellant and L. P. then left to pick up L. P.' § 11-year-old brother, H. P., and the three returned to the appellant's house where he offered H. P. two dollars to commit fellatio. But the boy refused.

The appellant denied the accusations. He testified that he had hired the two brothers to help him paint the inside of his home, even though he had only one pint of paint. He said, however, that no painting was done and that the boys watched television. According to the appellant, he paid L. P. five dollars after the boy promised to do some painting in the future.

As to the argument that the information was duplicitous, we note that no objection was raised until the day of the trial. The general rule is that a plea to an information waives all defects in the information except those which go to the jurisdiction of the court. Wright v. State, Okl.Cr., 505 P.2d 507 (1973). Since duplicity does not go to jurisdiction, the appellant, by pleading not guilty, waived his objection. Compare Fish v. State, Okl.Cr., 505 P.2d 490 (1973), in which we held that if one wishes to demur to the information after a plea to the merits has been entered, one must first move to withdraw the plea. This the appellant did not do, and the trial court was correct in overruling the demurrer.

The appellant's second assignment of error is based on the allegation in the information that he committed an act of fellatio upon L. P. One of the requirements of an...