Winn v. State, A-11403

• Decision Date: 10 October 1951
• Docket Number: No. A-11403,A-11403
• Citation: 236 P.2d 512,94 Okla.Crim. 383
• Parties: WINN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 512

236 P.2d 512

94 Okla.Crim. 383

WINN v.STATE.

No. A-11403.

Criminal Court of Appeals of Oklahoma.

Oct. 10, 1951.

Rehearing Denied Dec. 12, 1951.

Syllabus by the Court.

1.An information may be amended at any time when it can be done without prejudice to the rights of the accused.

2.It was not error for the trial court to allow an amendment by interlineation to insert the true name of girl upon whom sexual assault had been made where the information charged the assaulted person to be 'Mary Doe', and the proof showed that a preliminary examination had been held at which the true name of the prosecutrix became known to the defendant.Under such circumstances he was not prejudiced by such amendment.

3.When defendant takes the witness stand the prosecution has the right to cross-examine him with the same latitude as any other witness.Under the statutehe may be interrogated concerning his prior convictions for crime.12 O.S.1941 § 381.

4.While county attorney may interrogate defendant concerning other convictions for crime for the purpose of affecting his credibility, the trial court should not allow the examination to be enlarged by asking the details of the crime in which conviction was sustained, as such examination might cause jury to place undue emphasis on former conviction of accused and thus cause them to convict mainly because of bad reputation of the accused.

5.An argument using language which is chiefly directed at arousing passion and prejudice against the accused is improper.

6.Where the proof of guilt was overwhelming the court will treat the alleged misconduct of the prosecutor in asking improper questions on cross-examination and in making prejudicial argument to the jury as error, which requires a modification of the sentence imposed by jury in the verdict, but will not treat such errors as grounds for reversal.

George W. Gay, Oklahoma City, David W. Taylor, Norman, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., Robert L. Bailey, Asst. County Atty., Cleveland County, Norman, for defendant in error.

JONES, Judge.

The defendant, Thomas T. Winn, was charged by an information filed in the District Court of Cleveland County with unlawfully and feloniously touching, mauling, and feeling the body of a female child of the age of nine years, in a lewd and lascivious manner, which said acts by the defendant did not amount to the commission of the crime of rape, or assault with intent to rape, or attempted rape; was tried, convicted, and pursuant to the verdict of the jury was sentenced to serve the maximum sentence of five years imprisonment in the penitentiary; and has appealed.

It is first contended that the trial court erred in overruling the motion to quash the information presented by defendant.This motion rests upon the allegation in the motion: 'That the information filed herein does not apprise the defendant of the name of the person or persons against whom the alleged acts have been committed, the information referring only to 'Mary Doe'.'

At the commencement of the trial counsel for the defendant objected to the introduction of evidence for the reason that the alleged offense was charged to have been perpetrated on Mary Doe and the same 'was wholly insufficient to apprise the defendant of the charge and by whom the charge or offense was committed against'.At that time the county attorney asked leave of the court to amend the information by interlineation to read 'Elizabeth Updegraff' instead of 'Mary Doe', which permission was granted and such amendment was made and the trial proceeded.In order to determine whether the defendant was prejudiced by reason of the amendment it is necessary to make a short statement concerning the facts.

It appeared that there was a preliminary hearing based upon a preliminary information which had been filed, and at that preliminary examination it was disclosed that the name of the person against whom the offense was alleged to have been committed was Elizabeth Updegraff.

John Kniseley, manager of a theatre in Norman, testified that he saw the defendant sit down in his theatre in the second row from the front immediately behind Elizabeth Updegraff, a nine-year-old girl.He observed the defendant for several minutes and saw him place his hands on the little girl's body several times.Kniseley left the theatre to search for a policeman and returned in a few minutes with policeman John Henry.Together the policeman and the manager observed the defendant and he continued to place his hands on the small girl's thighs and on her abdomen.He was thereupon arrested by the officer and taken to the police station.The girl's father was notified and he talked to the defendant at the station and told him his name and the name of his daughter.The defendant himself admitted as much in his testimony wherein he stated:

'Q.Did they inform you at that time that that was Elizabeth Updegraff?A.Yes sir, his daughter.

'Q.Youknew there and that you have known since this charge was originally filed that she was the little girl you were accused of molesting?A.I didn't know who the girl was except Updegraff, the girl was never face to face with me at any time in the daylight or any other kind of light.

'Q.But you knew that?A.Just Updegraff's girl, all I knew.'

It is provided by statute as follows: 'When an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.'22 O.S.1941 § 406.

It is further provided: '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.'22 O.S.1941, § 304.

When the information was amended by interlineation counsel for the defendant did not ask for additional time to plead nor did they ask for a continuance of the case because of alleged surprise to them by reason of the amendment.

In the recent case of Shiever v. State, 234 P.2d 921, 923, decided July 25, 1951, this court said:

'In the case of Arms v. State, 49 Okl.Cr. 34, 292 P. 76, it is held: 'An information may be amended in matters of either form or substance when it can be done without prejudice to the rights of the accused.'

'See, also, in this connection, Ward v. State, 34 Okl.Cr. 296, 246 P. 664;Hammons v. State, 47 Okl.Cr. 297, 287 P. 1076;Little v. State, 21 Okl.Cr. 1, 204 P. 305.

'In the case of Knopp v. State, 59 Okl.Cr. 143, 56 P.2d 1193, this court held: 'An information charging a misdemeanor may be amended during the course of the trial, where the same can be done without prejudice to the defendant.''

It is our conclusion that the court did not err in permitting the amendment by interlineation.

Propositions 2 and 3 presented by defendant are related and will be considered together.In propositionNo. 2 it is contended that the court committed error in permitting the defendant to be cross-examined concerning other crimes, and propositionNo. 3 is the assignment that the assistant county attorney was guilty of making prejudicial and inflammatory statements in his argument to the jury.In the cross-examination of defendant, defendant was interrogated as follows:

'Q.Have you ever been convicted of a felony?A.Yes, sir.

'Q.Have you ever been convicted of a...