Wilson v. State

• Decision Date: 31 August 1949
• Docket Number: A-11046.
• Citation: 209 P.2d 512,89 Okla.Crim. 421
• Parties: WILSON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

209 P.2d 512

89 Okla.Crim. 421

WILSON v. STATE.

No. A-11046.

Court of Criminal Appeals of Oklahoma

August 31, 1949

Opinion Adhered to on Rehearing November 30, 1949.

Loyce Wilson was convicted by the County Court of Choctaw County Eugene D. Ellis, J., of the misdemeanor offense of pointing a pistol at another and sentenced to serve 90 days in the county jail and pay a fine of $50, and he appealed.

No appearance was made on behalf of the defendant.

The Criminal Court of Appeals, Powell, J., after declaring that it would examine the record for fundamental error only affirmed the conviction holding that the county court had jurisdiction to try the misdemeanor although the information recited sufficient facts to support a charge of the felony of assault with a daugerous weapon.

Syllabus by the Court.

1. Where the defendant appeals from a judgment of conviction and neither any brief is filed nor appearance for oral argument made, this court will examine the record and evidence and if no error prejudicial to the substantial rights of the defendant is apparent, will affirm the judgment.

2. On examination of the record, where a jurisdictional question is raised by the record and the petition in error, the court will consider such jurisdictional question, and if the question has merit, may render an opinion covering the jurisdictional question.

3. The fact that the charging part of the information recites facts that would support a felony charge, while the 'descriptive label' sets out a misdemeanor charge does not constitute error where the charging part contains statements of acts constituting the offense and supporting the descriptive label, in ordinary and concise language, as the descriptive label of information under such facts binds the State as to the charge for which defendant is to be tried.

4. The county attorney acts under a discretion committed him for the public good, and one of his most important functions is to select, out of what the law permits, the charges which he will bring against offenders. They have no power to elect, and above all they cannot object if he overlooks their heavier offendings and prosecutes them simply for the lighter. Held: Though defendant, who was prosecuted in the county court for pointing a pistol at another, a misdemeanor charge (Tit. 21 O.S.A. § 1279), could have been charged with a felony according to facts charged in the information (Tit. 21 O.S.A. § 645), the county court had jurisdiction to try defendant for the misdemeanor.

Welch, Bounds & Kile, Hugo, for plaintiff in error.

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

POWELL Judge.

This is an appeal from the County Court of Choctaw County, Oklahoma, wherein Loyce Wilson on June 16, 1947, was charged, by information, with the crime of pointing a piston at another. He was tried on December 10, 1947, by a jury, convicted of the charge and sentenced to serve 90 days in the county jail and pay a fine of $50. A new trial having been denied, he appealed from the judgment and sentence by filing in this court on April 13, 1948, a petition in error with case-made attached. No briefs have been filed in this case, and no appearance on behalf of the defendant was made at the time the said cause was set for hearing on May 18, 1949, or at any time subsequent thereto, although the court by its own action granted defendant until July 1, 1949, to file brief.

It has repeatedly been held that where the defendant appeals from a judgment of conviction and neither any brief is filed nor appearance for oral argument made, this court will examine the record and the evidence and if no error prejudicial to the substantial rights of the defendant is apparent, will affirm the judgment. Whitlow v. State, Okl.Cr.App., 184 P.2d 253, not yet reported in State reports, and cases therein cited. Moreover, this court will examine the record for jurisdictional and fundamental errors and where no errors appear the judgment will be affirmed.

On motion for new trial, defendant for first time raised the point that the information charged a felony, and that the county court did not have jurisdiction to try him of the charge as set out in the information. A motion in arrest of judgment set out the same grounds, but was by the court overruled. The petition in error charges lack of jurisdiction on the part of the trial court. It is claimed that though the crime charged constituted a misdemeanor, the allegations in the charging part of the information indicated a felony and that, therefore, the county court had no jurisdiction. This jurisdictional question merits comment.

We have carefully examined the record, and while the information is not a model, it is sufficient to support the conviction of pointing a pistol at another. In describing the manner and form of pointing the pistol, it was set out in the charging part: 'That the said defendant then and three being, did then and there wilfully, wrongfully and unlawfully point and discharge a certain weapon at and towards Hubert C. Reaves, Jr., thereby causing said leaden bullets from said gun held in the hands of him, the said Loyce...