Willis v. State

• Decision Date: 14 April 1938
• Docket Number: A-9352.
• Parties: WILLIS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

78 P.2d 840

64 Okla.Crim. 213

WILLIS v. STATE.

No. A-9352.

Court of Criminal Appeals of Oklahoma

April 14, 1938

Syllabus by the Court.

1. An objection to the sufficiency of an information cannot be raised for the first time on appeal, unless some foundation was laid therefor before final judgment was rendered.

2. Where the objections mentioned in section 2948, St.1931, 22 Okl.St.Ann.§ 504, Procedure Criminal, appear upon the face of the information, they can only be taken by demurrer, except that objection to the jurisdiction of the court over the subject of the information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment. Section 2956, St.1931, 22 Okl.St.Ann. § 512.

3. In a prosecution for vagrancy, evidence examined and held sufficient to sustain the verdict and judgment of conviction.

Appeal from Court of Common Pleas, Oklahoma County; Chas. W. Conner Judge.

E. H Willis was convicted of vagrancy and he appeals.

Affirmed.

Mathers & Mathers and Joe Adwon, all of Oklahoma City, for plaintiff in error.

Mac Q Williamson, Atty. Gen., for the State.

DOYLE Judge.

This appeal is from a judgment of conviction rendered in the court of common pleas of Oklahoma county, in accordance with the verdict of the jury finding the defendant, E. H. Willis, guilty of vagrancy, and fixing his punishment at a fine of $100 and confinement in the county jail for 30 days.

Motion for a new trial was overruled. On February 20, 1937, the court rendered judgment on the verdict.

The information charged that on the 6th day of November, 1936, in Oklahoma county, E. H. Willis, "then and there being did then and there wilfully, unlawfully and wrongfully loiter about and upon the streets of Oklahoma City, said county and state; said defendant was an able bodied person with no visible means of support and made no honest endeavor to secure a livelihood, contrary to," etc.

The assignments are: Error in the overruling of defendant's motion for a new trial; error in overruling the defendant's motion for a directed verdict; and errors of law occurring during the course of the trial and excepted to at the time.

The testimony on the part of the State tended strongly to show that the defendant was guilty of vagrancy as charged. Seven or eight members of the police department of the city of Oklahoma City testified that they had seen the defendant hanging around the bus station and railroad stations on the date alleged, and frequently for several months prior thereto, that he had been arrested several times prior to the arrest in this case; that he associated with marijuana smokers; that he had no visible means of support and was an able-bodied person, that accosted by the officers he would say he was not working at all, but was going to go to the cotton fields; at other times he would say that he had a job with some oil company. It appears that he was arrested several times for working petty confidence games.

The defendant did not testify as a witness in his own behalf.

The only witness for the defendant was J. T. Boyd, who testified that he operated a pool hall at 505 S. Robinson street, Oklahoma City, that he could not recall any dates but remembers cashing three or four checks for the defendant in the fall of 1936, one or two in December, 1936, as he remembers.

It appears from the record that no demurrer was filed to the information or objection to the introduction of evidence made, and no motion in arrest of judgment was made. The sufficiency of the information is challenged for the first time in this court.

It is strenuously insisted that there was a defect in the information which entitled the defendant to a reversal of the judgment against him.

An information cannot be attacked upon appeal unless some foundation was laid therefor before final judgment was rendered. The defendant may take advantage of a defective information by demurring thereto before the trial, by objecting to the introduction of evidence on the ground that the facts stated do not constitute a public offense, or by motion in arrest of judgment..

The function of a demurrer is to defeat the information without a trial whenever it appears that it is subject to any one or more of the five objections...