Miller v. State

due, has become that an installment tent orders MILLER, it clear that such Ray Appellant,

should make Harold represent do not “vested decrees divorce money represent rights” judgments for rights. such Oklahoma, Appellee, STATE opinion attempts confine majority No. F-88-570. fact, majori- when in to its facts Nantz overruling spite ty Nantz. opinion Appeals Court of Criminal Oklahoma. opinions, two attempts to reconcile the Feb. neither reconciled nor distin- they can be guished. holds that divorce decrees Nantz alimony do

containing support orders rights. majority represent vested

opinion in case at holds to bar receiv-

contrary. party holds that a Nantz

ing alimony only can a settled support have

expectation support, continued and to be

consistent, support party paying expectation of

could have a settled

continuing pay a amount. The certain holds opinion the case at bar

majority constitutionally payment

that the amount is

shielded, “impervious and invulnerable A

tinkering by legislation.” after-enacted

review of the dissent Nantz reveals simply dissent case at bar the Nantz clear, nothing If it should

revisited. else incompati-

be clear that these two cases are granted

ble be and should a divorce declaring

explicitly to be overruled. Nantz I

Concerning the asserted “Clifton Bar” expressed already my views of

opinion Clifton, in the dissent. Clifton (Okla.1990). The sections opinion majority in the case at bar

addressing regarding property divi- Clifton awards, those of the ma- sion sections alimony

jority opinion addressing support stating can

awards best summarized Congress has

that what the United States

provided Former in the Uniformed Services Act, leg-

Spouse’s Protection and what the has en-

islature of the State O.S.Supp.1987, in 12 the Su- acted

preme of Oklahoma has vetoed

judicial and the fiat. case Clifton opinion in the at bar have majority case

effectively killed the case bleed- Nantz legal away the rationale Accordingly, respect-

Nantz was based.

fully dissent.

OPINION LANE, Judge: Presiding Miller, Ray tried Appellant, Harold was by jury Attempted Pan- crimes Felo- dering, After Former Conviction of a (21 O.S.1981, 1081); and Ex- ny Indecent (21 O.S.1981, 1021) posure in Comanche Court, County District Case No. CRF-87- attempt- jury guilty 419. The him found guilty indecent pandering and not exposure. The him to trial court sentenced years imprisonment as recom- twelve jury. mended propositions of er- raises four argument ror. We will address charging the crime of that the Information attempted pandering fatally defective was all the elements of the it did requires We find error reversal crime. this argu- appellant’s renders the other ments moot. appellant known Gathe had Debbie years approximately

for three when morning early her in the came to house August hours of 1987. He tried talk telling her becoming prostitute, her into money easy how and how much would be attempted she make. to kiss could He then her, dragged her into the bathroom hair, pulled pants down his and demanded perform sodomy. At this she oral point into the young son came Gathe’s appellant and left. Gathe bathroom result, who, reported police this as a microphone transmitting hid device in and MILLER, Appellant, HAROLD RAY appellant living her room. The returned by jury tried for the crime of ATTEMPT- morning. the next He early Gathe’s home ED PANDERING Case No. CRF-87-419 again pros- told Gathe she should become County in the District Court Comanche titute, her protect clothe and offered to and Roberts, M. before Honorable William exchange sixty percent for her earn- Judge. Appellant District was sentenced ings. part of officers heard Surveillance (12) years custody to twelve conversation, recorded. this it was not Department and Oklahoma of Corrections perfected appeal. Judgment appel charging Information Sentence REVERSED and REMANDED pandering lant under 21 with the crime of for new trial. alleged: HAROLD RAY MIL- ... that the said Purcell, Appellate Thomas Asst. Public knowingly, unlawfully, wilfully, LER did Defender, Norman, appellant. for at- feloniously the crime of commit Gen., Henry, A. Atty. tempted Pandering Robert H. Alecia manner Gen., George, Atty. City, the said Harold Asst. form as follows: in- feloniously attempt to appellee. Ray Miller did Gathe, a encourage The true test is not wheth- one Debbie duce prostitute might possibly er it have been made female become prom- certain, inducement consisted that said more but whether it contains ev- provide ises the said defendant ery element of the to be engage prostitu- Gathe to apprises said Debbie sufficiently meet, Lawton, City of Oklahoma. tion prepared he must of what added). (emphasis O.S.1981, 1081, pandering 21 Title § statute, inducing encouraging or prohibits Burnett, 147, Ex Parte 78 Okl.Cr. 145 See an “inmate of a house someone to become (1944); State, Sparkman 441 67 P.2d v. or enter or leave the prostitution” 245, (1939); 93 P.2d v. Okl.Cr. 1095 Stokes prostitution. purpose The 21, State, (1948), 86 Okl.Cr. P.2d 424 189 allege either of these Information 21, grounds, on other 86 Okl.Cr. modified elements. essential (1948); State, Argo 190 P.2d 838 v. 88 107, 200 Okl.Cr. P.2d 449 challenges validity of the State, 18, 96 P.2d 267 Raper v. Okl.Cr. 248 Information, arguing it fails to state (1952); State, v. 267 P.2d 155 Frazier with the dual crime. State counters Cr.1954); State, supra; City Fish v. appellant this ar- position that the waived (Okl.Cr.1976), 554 Haley, Tulsa v. P.2d 102 failing Infor- gument by challenge the grounds, 775 P.2d overruled on other entering prior demurrer mation (1989); State, Lamb v. 626 P.2d 1355 828 misled plea, and that was not in fact (Okl.Cr.1981); Nunley State, supra. v. Information. requirement Information these “ele Some of cases state the allege alleged, element state facts to material others use ments” must be while charged firmly particulars” crime has root- “facts language of the been “the or jurisprudence since the constituting” crime. These terms Territory, time of statehood. See Stout v. equivalent. They all that the crimi mean 500, 103 (1909); P. v. 2 Okl.Cr. 375 Fletcher nal Information must set forth facts (1909); State, 2 Okl.Cr. 101 P. 599 allege element of the crime each State, 13 161 P. 331 Abrams v. Okl.Cr. requirement long This been 44, 112 (1916); State, v. 72 Armour Okl.Cr. In by this Court to be constitutional. held (1941); State, 75 Okl. P.2d 1116 Dunbar v. process held the clause of Fletcher we due (1942); McCoy P.2d 131 116 v. Cr. II, 16 Constitution Article the Oklahoma § (1950); State, 223 P.2d 778 requires notice of all the elements 225 P.2d Douglas v. charged. Driving point specific offense (1951); Jones rhetorically, home the Court asked (1951); 229 P.2d 613 Vandiver contend is done when the Who will (1953); Gibson v. not con- Indictment or Information does 328 P.2d Fish v. particulars tain a statement all State, 505 P.2d 490 Wilds v. offense or to constitute an essential crime. P.2d 194 Williams our P. at 604. Stokes we based 1978); Nunley v. II, holding Article 20 of the Oklahoma denied, 867, 104 U.S. S.Ct. cert. explained: We Constitution. (Okl.Cr.1983); Plotner L.Ed.2d 179 (Okl.Cr.1988). requirement an unreasonable the Constitu- keeping is in one but test for of the Informa- refer- statutory provisions with tion and advances, it suffi- tion which the State as the pleading, criminal as well ence to apprises the of what he ciently defendant construing such provisions of this court meet, the sec- must be provisions. prong two-prong test for suffi- ond Tulsa v. 428. ciency 189 P.2d at See also Information articulated at 103. Haley, this Court: constitutional, conveying meaning being er words the same In addition to set forth requirement may that the Information be used. allege every material element of facts to information, 409. Indictment statutory. charged Title

the crime is also when sufficient. through 4101 set forth §§ The indictment or information is suffi- sufficiency of an in- cient if it can therefrom: be understood or Information. dictment through provide in rele- Sections 401 act or 6. That the omission part vant as follows: clearly distinctly the offense is set Requisites in- of indictment or ordinary language, forth in and concise formation. repetition, without and in such a manner or information must con- The indictment person as to enable a of common under- tain: standing what is intended. know action, specifying 1. The title of the charged 7. That the act or omission as the indict- name of the court to which offense, degree is stated with such a presented, and the ment or information is certainty, as of to enable the court to parties. names of the pronounce judgment upon a conviction 2. A statement the acts of according right to the of case. ordinary lan- offense, in and concise 410. Immaterial informalities to be § guage, and in such manner as to enable a disregarded. common of or No indictment information is insuffi- intended, added). (emphasis is know what cient, trial, judgment, nor can the or oth- 402. Indictment or § affected, proceedings by er thereon be and direct. must be certain imperfection reason of a defect or The indictment or information must be matter of form which does not tend to regards: direct and certain as it prejudice rights of the of substantial party charged. 1. The the merits. 2. The offense holding Our that the Information must particular 3. The circumstances charge of the crime all essential elements charged, they when are neces- offense sary 401, Stokes, grounded has been on Section offense, complete to constitute 428-9; Fish, 494; 505 P.2d at at added). (emphasis 103-4; Haley, Tulsa v. 554 P.2d at Designation of defendant 403. § 402, Stokes, Tulsa, supra; City Section fictitious name. 1100; supra; Sparkman, 93 P.2d at Sec- Single charged— 404. offense to be § 409; Dunbar, 122; Wilds, tion 131 P.2d at Different counts. 783; 545 P.2d at and sections 407 and Allegation 405. of time. § 410; Sparkman, supra. Misdescription person in- 406. jured injured. or intended to be argument objec The State’s Words, tion to the Information was waived fail 407. how construed. lodge prior entering plea it in The words used an indictment or infor- unavailing In for several reasons. the first mation must be construed their usual language, except place fundamental error is not waived. acceptation, common law, phrases defined words Fundamental error that which denies the according their right, are to be construed statutory accused constitutional or legal meaning. goes and which to the foundation strictly pursued. 408. not case. Statute West 1988). past holdings of our reveals Review pub- Words used a statute to define a plainly that an Information which does not strictly pursued lic need not be information; allege oth- facts to each element of the the indictment or assert been amended since codified in 1910. These statutes preparation constitu- Informations charged denies an accused crime statutory rights. attorney criminal as cases tional well applicable should each time re-read the Furthermore, to “state the failure statutory provisions every and make ef- particulars” to constitute crime all the clearly every cover plainly fort to void, Fletcher, 101 renders an Information provision language either in the material fundamentally defective” P. at and “so statute, words similar jurisdiction insufficient to confer import. This statement is for the benefit court. on the trial Chandler generally attorneys prosecuting who 301-2 give do not that consideration to the lan- Therefore, an Information which does not guage information that should be allege material ele- recite facts to given requirements by ... Stricter trial ment of the crime fails to judges materially improve the would crime, fails to confer therefore quality of informations as reflected in a subject matter district transcript finally record or when either challenge juris- court. A Court, might in fact reaches may be first time on diction raised materially appeals cut down of a techni- appeal. Buis v. cal character. Cr.1990). recognized long This Court has 331, State, allege the to v. 96 254 P.2d that failure the elements of Hanlan 373, (1953). be for the first time on 376 the crime can raised exception appeal general as an waiv- PARKS, JJ., and BRETT concur. 279, State, rule. 152 er P.2d Smith LUMPKIN, V.P.J., in concurs Tulsa, 554 P.2d at part/dissents part. in 103; State, Nickell v. 1977); 634 P.2d Short JOHNSON, J„ LUMPKIN, J„ joins Byrne v. 620 P.2d part. concurring part/dissenting in in Laughton LUMPKIN, Vice-Presiding Judge, (Okl.Cr.1977). P.2d 1171 part/dissents part. in concurs post challenge trial of the Informa- reached concur the results support allege tion for failure to facts to case, however, join I cannot Court in this crime also each element autho- leap quantum antiquity into the Court’s pro- rized statute. Title consciously pleading”. “code objection vides that an to an indictment or plain language of the stat- disregards appears which on its face Information utes involved and amends the statutes goes which or interpretation a technical word of that facts stated do not constitute a the intent of the was not confined within offense, may arraign- taken public after Constitution. statute or ment, trial, plea guilty of not at under in- alleged appeal judgment. Appellant arrest of fatally formation was defective did The Court is well aware of the unneces- charge all of the of the offense elements generated by sary ap- waste resources specifically omitting pandering, attempted counsel, peals of this nature defense prostitution”. of “house of element prosecutor, judiciary and the at both acknowledge his failure appellate appel- the trial and levels. The quash objection to the to file a motion to disadvantaged by pros- lant himself trial, argues at information (4) pect years of retrial some four after he fatally so defective as allegedly committed this crime. This issue this, jurisdiction; and deny trial court trial, been resolved not re- should have at error, properly being a fundamental plea prosecutors trial. Our and the trial appeal. time on raised for first forty years ago apt bench almost is as Essentially, seq. 401 et today Presiding Judge as then. Powell of these provisions notice violation wrote: provisions is not of a fundamental nature defendant on notice of the facts constitut which can be raised for the first time on charge against him. See also Mar appeal. tin v. 250 P. (1926). prosecu-

It is well established that in the action, tion of a criminal the State must In Clark v. prove every element each and of the of- (1937), these “new” statutes were charged. fense Ramirez v. departure held to be “a radical from the old Voegeli 75 common law with reference to criminal law procedure.” and criminal The statutes information, filing though, it is not dispense were held to “with the strict con- necessary allege placed struction upon once pleadings, those element of the offense Section and makes them sufficient if a respectively, refer to a “state- ordinary understanding can know what ment the acts the offense” was intended They terms used. particular and “the circumstances of the place upon duty the courts the holding charged”. provisions do not them they sufficient unless are so defective require pleaded the elements to be prejudice as to rights of the defendant information. An information is sufficient upon the merits of his case.” 73 P.2d at complies if it of Sec- 484. seq., adequately tion 401 et informs the determining standard for the suffi- defendant of what he must be ciency of the information based prohibits defend possibility ordinary person of an subsequently being put of the defendant part evolved into a Succinctly two test. jeopardy a second time for the same of- stated in Nealy v. fense. (Okl.Cr.1981), part this two test reviewed analysis This is consistent with the earli- sufficiency of light the information in interpretations est of our state statutes. 1) of: whether the defendant inwas fact State, In Star v. 9 Okl.Cr. 131 P. 542 information; and, 2) misled whether (1913), appellant challenged the suffi- expose it would possi- the defendant to the ciency of the grounds information on the bility subsequently being put of in jeopardy that it mentioned the alleged date of the a second time for the same offense. See once, only and repeated was not State, also v. 675 P.2d 443 Jefferson “at each issuable and triable fact.” In Cr.1984); State, Campbell v. 640 P.2d 1364 rejecting challenge this finding and the in- (Okl.Cr.1982); State, Holloway v. 602 P.2d sufficient, recognized formation this Court (Okl.Cr.1979); State, Williams v. pleading alleged that the date of of- P.2d 194 Tulsa v. fense throughout numerous times the in- Haley, 554 P.2d 102 McCoy rule, formation was the ancient but that State, (Okl.Cr.1975) v. and brought “the conditions which this rule into Mitchell v. long passed existence have away since 1965). “[Ojur ceased to exist.” statutes ex- Regrettably, the Court in this decision is press repeal terms the artificial rules of compounding jurisprudential mistakes of pleading established common law.” 131 past by restating as a principle P. law authority upon at 543.' The relied by the which does not 6700, 6704, have a foundation in the Court was Sections 6705 of the perpetuating Rather than Compiled prob- Laws 1909. These law. Sections should, candor, lem Compiled we with all admit incorporated Laws have been this past developed into our Court in the official statutes as Title 22 diametric O.S. opposing seq. 401 et lines of wording authority of these caselaw on the very statutes has essentially adopt remained same issue and the line same of au- points out, since 1909. thority supported by legal analysis. As Star the initial interpreted case law statutory provi- divergent these in this case does admit the strictly regards sions placing exist, however, authority lines of it then legal determining of the informa- supported not the line adopts problem might possibly not whether it example of this tion is A vivid analysis. certain, to Ex by the Court’s citation made more but whether it is been revealed Burnett, 145 P.2d offense in- alleged element of the Parte (1944); Sparkman charged sufficiently ap- v. tended to be (1939); v. 93 P.2d Stokes of what he must be prised defendant (1948); 189 P.2d 86 Okl.Cr. Argo to meet. v. 88 Okl. 200 P.2d 88 Okl.Cr. Argo v. See also Cr. (1948) true proposition for “[t]he State, 634 P.2d 755 Short might sufficiency is not whether test of P.2d 262 Smith certain, more possibly have been made Chandler every element of it contains whether (1953). However, again research re- sufficiently ap- charged offense to be line one of the earliest cases veals must be prises of what he authority, this new stan- Argo, enunciated A Parte meet”. review of Ex prepared to with sole reliance a case which dard prin- application of the reveals the Burnett not address the ele- did rule, exactly opposite the stated ciple is ments of the offense. infor- requirement is that i.e. Dunham of- the acts mation “state (1943), authority Argo, P.2d 834 cited as a manner as to enable fense in such challenged in which defendant is a case understanding to know person of common sufficiency of for fail- the information Id., P.2d at 443. what intended”. facts to constitute a ure to state sufficient adopt requirement That decision offense. dismissed the public This Court each element the offense. plead stating challenge that “an in that recognize Syllabus While of the offense informs accused into opinion insert the “element” does word particu- he is such with which supported analysis test, it is prepare to enable him to his larity as opinion. trial, the of- so defines and identifies “bootstrapping” of cites type that, acquitted if he will convicted or fense authority vividly revealed cases as more any defend himself sub- able to discovery genesis through the prosecution the same sequent holdings Spark- authority for the of law State, 53 quoting Maney v. Okl. sufficient” in each of and Stokes. decision man (1932). is not 13 P.2d 597 It clear Cr. predicated the Court’s these cases is leap in the inter- Argo the Court made how decision Warren requiring pleading of pretation from the (1923). In the Court 215 P. 635 Warren pleading requiring to the facts sufficient sufficiency of true test of stated the “[t]he every offense. element might pos- an is not whether it information certain, sibly made more demonstrates, have been test for As the above every it contains element whether sufficiency of an informa- determining the charged, suffi- intended to be offense clear lan- initially was based on tion ciently apprises the defendant of what statute a conscious break guage of the However, the to meet”. prepared must be hypertechnical requirements of from proposi- authority cited no for Court However, as weeds pleading”. “code analysis would allow tion or an which meticulously in the tend- forth most spring leap” original “quantum to make the Court grown term “elements” has garden, the requirement element legislate to proposition a misplaced word into from a words, cited pleading. In other these cases in a criminal relating pleading to notice law unsup- authority predicated an upon as subsequently led This information. ported statement. being intertwined tests used the various pleading sufficient requirement for and the predicat- By a defined cases line of confused. This law facts or sufficient elements unsupported ed on statements cases which group in a illustrated developing test held that through 410, an recite the standard that sets forth the requisites of an if man of common under- information. These stat- sufficient require pleading utes do not of each standing meaning, could know its but find element of the if it the information insufficient failed to agree I philosophy expressed with the allege every element of the offense. See early cases from this Court that the Wolfenbarger v. purpose basic of an information is to serve Cr.1985); Lamb v. 626 P.2d 1355 notice the defendant that he has been Tate v. 556 P.2d 1014 committing with a criminal offense Simmons v. enough and that such notice contain facts Fish so that the defendant knows what he must Jones Okl. against. to defend In the Cr. Jones, Judge writing words of for a unani- my findings While have related court, mous Jones v. cited, cases it is not clear how we arrived at (1951): varying interpretations. these The resolu- We are liberal the construction [to be] tion of such a issue would deteriorate into informations, any and if there is lan- However, guessing game. a mere a review guage by which this court can reason- of these cases leaves the reader ably person state that a of common impression point in plead- that at some time understanding can know with what he is ing the “elements” of offense became charged so that he could be enabled to synonymous pleading the “facts” con- plead jeopardy in case of a second stituting the offense. offense, for the same then such informa- tion will be sustained demur- researching analyzing While this is- rer. sue, recognize we have not failed to analysis 229 P.2d at 614. legal supported human frailties that all of us in plain language of the statutes. Sec- profession suffer. It is all easy rely too plainly tion 401 states the information must upon the authority most recent case contain a “statement of the acts constitut- support particular position without re- ing in ordinary and concise searching supporting authority. language, and in such manner as to enable clearly instant case illustrates the need to common begin our research with the laws as set know what is intended”. A search of the representatives forth people, Oklahoma Constitution and statutes re- embodied the constitution and the stat- requirement plead- veals the of “elements” proceed utes. We then interpreta- to the present. Therefore, require is not tion of that law as contained in cases from of the elements in effect attempts this Court. In our explain only disregarding means this is not statutory constitutional concepts set language of the constitution and stat- forth or in vary style our endeavors to utes, amending plain language to writing opinions by using of different require pleading of elements. terms, original Legislature intent of the by This action the Court violates the analysis is often attempt lost. This is an to requirements statutory basic of construc- original return to that intent in determining tion. sufficiency of an information. interpretation In the statutory of rights person The of a accused of a crime terms, construction, the doctrine of nosci- protected under the Oklahoma Consti- sociis, is, prevails. tur a That the mean- tution, 2, provides Art. 20. This section particular may of terms in a statute in pertinent part person that a accused by be ascertained reference to words as- “shall be informed of the nature and cause sociated with them the statute. It is of the against copy accusation and have a policy also a familiar in the construction thereof ...” This is the constitutional of terms of a statute to take into consid- provision addressing given the notice to a meaning naturally attaching eration the person charged context, with a crime. 22 adopt Title O.S. to them from the and to

883 information, by har- of notice in the is waived which best that sense words Am.Jur.2d, an objection 73 the failure to raise to the monizes with context. 213. appear- information or the defendant’s Statutes § plea charge. ance and to the supports jurisprudence of this State The Sowards, 64 rule. In this basic objection has held that an to Court 324, (1938) 334 this sufficiency cannot information the rule of that strict determined Court appeal raised for the first time unless be penal is not of a statute violat- construction objection some was laid for the foundation a reasonable by giving its words mean- judgment before the final rendered. they ing according to the sense which P.2d Allen v. 1306 addition, the intended. In Court were 1987); Willis v. Adams, 187 Okl. Watkinson Therefore, sufficiency P.2d (1940) held that the rule P.2d is not an can of information issue which providing penal for a construction of strict appeal. the first be raised for time on general prin- is to the statutes subordinate Accordingly, an when information all should be construed ciple that statutes filed, charging a criminal defendant with a applied accomplish in such a manner to any objections if the defendant has legislative requires Section 401 intent. to the or substance of the informa- form pleading “acts only the of tion, lodge objections he those must Legislature If the had to offense”. wanted plea prior entering the trial court a pleading elements could and require the object charge. that The failure to so requirement. made An would have The appellate any waives review error. recognition Legislative this example of if complies information is sufficient O.S.1981, Leg- in 22 741 where found adequate- of Section specifically required islature ly defendant he must informs the of what charging in an an overt act information prepared prohibits defend conspiracy. recently offense of We subsequent- possibility of the defendant interpretation. reaffirmed rule of See being ly put jeopardy second time v. District Court Isaacs In making the same offense. this determi- P.2d County, 818 nation, may court whether consider P.2d Napier v. OBJ possibility there McGee information, could be misled (Okl.Cr.1991). whether the information is worded so that justify departure from this estab- fails ordinary can legislating rule of an lished construction terms know what was intended to Section 401. amendment are not used. Errors or omissions which Furthermore, challenging dis- prejudicial to the defendant are to be information is not an issue which can prevail regarded and common sense is appeal. time on be raised first over technicalities. (Okl.Cr.1990), Buis held that we present case suffi- information cases is in the trial court criminal vested ciently apprised proper endorsement verification should be to meet. pursuant the information any reference “house of omission of to a distinguished opinion In that we prostitution” in the jurisdiction, which subject matter cannot be fatally defective. render the information waived, personam jurisdiction, which However, prove an element the failure if objection no is made. If can be waived prostitu- such “house properly verified and the information is fatally de- tion” would render verdict endorsed, notice fective. met, seq. et jurisdiction is conferred Any challenge to District Court. court, lack

personam

Case Details

Case Name: Miller v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Feb 19, 1992

Citation: 827 P.2d 875

Docket Number: F-88-570

Court Abbreviation: Okla. Crim. App.