Hubbard v. Territory , 1 Okla. Crim. 131 ( 1908 )

Plaintiff in error insists, among other assignments of error, that "the court erred in permitting defendant in error to amend the information after the case was closed and to charge another distinct offense." The offense charged in the information, before amendment, is defined in an act approved March 13, 1905 (Sess. Laws 1905. p. 196, c. 13), which reads: Section 1:

"If any person shall orally or otherwise, falsely and maliciously or falsely and wantonly impute to any female in this territory, married or unmarried, a want of chastity, he shall be deemed guilty of slander, and upon conviction shall be fined not less than twenty-five dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than thirty days nor more than ninety days, or by both such fine and imprisonment."

Said information, as amended, charges a wholly different offense, which is defined in Wilson's Rev. Ann. St. Okla. 1903, § 1959, which reads:

"If any person shall utter or speak any obscene or lascivious language or word in any public place, or in the presence of females, or in the presence of children under ten years of age, he shall be deemed guilty of a misdemeanor and upon conviction thereof before any justice of the peace of this territory, he shall be liable to a fine of not more than one hundred dollars, or imprisonment for not more than thirty days, or both, at the discretion of said justice."

Under the very liberal practice laid down in section 1883 of said statutes, the trial court was authorized to permit the amendment complained of by defendant with that statute, which reads:

"All criminal actions prosecuted in the probate court shall be brought in the same manner as similar actions in the justice courts; or shall be upon information of the county attorney based upon a sworn complaint and shall be under his direction and control; and warrants shall issue the same as in the justice courts; Provided, if any complaint or information be adjudged defective or insufficient it may be amended to any extent and sworn to until it is sufficient, and if the evidence fails to prove the crime charged, but tends to prove any other crime the information may be amended to charge the crime which the evidence tends to prove, and if that be a felony the trial shall be suspended and the accused shall be proceeded against by preliminary examination and bound over or discharged as the court shall deem just under the evidence. If the information or complaint be amended, the court shall see that the defendant is not prejudiced thereby and if justice requires it shall grant to the accused time to prepare his defense to the information or complaint as amended."

But the court was not authorized to permit said amendment unless the information was afterwards sworn to, as provided in that section. It appears from the record that the information, after amendment, was not sworn to or based upon any sworn statement whatever.

The conviction of this defendant under this amended information was therefore erroneous, and the judgment of the lower court must be reversed, and it is so ordered.

All the Justices concur.