State v. Hammond ( 1989 )

OPINION

PARKS, Vice Presiding Judge.

The State, alternatively under 22 O.S. 1981, § 1053(1) or § 1053(3) has appealed the decision of the Tulsa County District Court, which dismissed Case No. CRM-87-123, holding that the evidence presented was insufficient to show force or violence as required by 21 O.S.1981, §§ 641 and 642.

We do not reach the merits of this case as the appeal must be dismissed insofar as it does not fall within the state appeals authorized by 22 O.S.1981, § 1053. A brief summary of the procedural history is necessary. Appellee, who was the defendant below, was charged with Assault and Battery. On the morning of trial, appellee filed a “Motion to Quash” the Information based on insufficient evidence. Before trial began, an in camera hearing was held wherein the trial judge heard evidence regarding the appellee’s motion. After allowing the State additional time to present authority, the judge sustained the motion to quash on the basis that the State had not presented sufficient evidence of the element of force. The prosecutor objected and gave notice of his intent to appeal the ruling.

For many years, the hybrid “motion to quash for insufficient evidence” has troubled this Court. While it has been recognized that there is no specific statutory authority for such a motion, we have repeatedly stated that such a motion falls within 22 O.S.1981, § 493, setting aside an information or indictment, or 22 O.S.1981, § 504, a demurrer to the information. State ex rel. Macy v. Jackson, 659 P.2d 361, 362 (Okla.Crim.App.1983); State ex rel. Fallis v. Patton, 637 P.2d 1266, 1267 (Okla.Crim.App.1981); Still v. Dalton, 624 P.2d 76, 78 (Okla.Crim.App.1981); State v. Tieman, 626 P.2d 1360, 1361 (Okla.Crim.App.1981); State v. Truesdell, 620 P.2d 427, 428 (Okla.Crim.App.1980); State v. Durham, 545 P.2d 805, 811-12 (Okla.Crim.App.1976); City of Tulsa v. Haley, 554 P.2d 102, 105 (Okla.Crim.App.1976); Patrick v. State, 95 Okl.Cr. 141, 241 P.2d 418, 422 (1952).

This type of “judicial legislation” has led to varied results depending on whether the defendant’s motion was considered a motion to quash under Section 493 or a demurrer under Section 504. If it was considered to be within the mandates of Section 493, this Court held it was not a bar to further prosecution in light of Section 501 and was properly appealable by the State under 22 O.S.1981, § 1053(1). Truesdell, 620 P.2d at 428; Durham, 545 P.2d at 812. However, in some instances, we held that the “motion to quash for insufficient evidence” was more in the nature of a demurrer and was therefore a bar to further prosecution pursuant to Section 508, but was appealable under Section 1053(3). Haley, 554 P.2d at 105. In a third situation, this Court has held that a “motion to quash for insufficient evidence” does not fall within the mandates of Section 493, and is therefore not appealable under 22 O.S.1981, § 1053(1). Jackson, 659 P.2d at 362.

Clearly, neither the statutes dealing with the quashing of or the demurrer to the information nor the statutes dealing the permissible state appeals envisioned this “hybrid.” Section 493 specifically deals with defects evident on the face of the information or with errors occurring during the grand jury process. This section, which is the sole statutory authority for the setting aside of an information or indictment, has been strictly construed by this Court, requiring the defendant to clearly show that he falls within the enunciated provisions. State v. Barnett, 60 Okla.Crim. 355, 69 P.2d 77, 84 (1936). Furthermore, we have stated that Section 504, which addresses the criteria for a demurrer, is limited to those defects which appear on the face of the information. Truesdell, 620 P.2d at 428.

Thus, we have no choice but to determine that a “motion to quash for insufficient evidence" is not authorized by either Section 493 or 504. Although this ruling leaves a void, we have concluded that it is the duty of the legislature, rather than the duty of this Court, to enact statutes which deal with this problem. In so holding, we expressly overrule the following cases to the extent that they are inconsistent with this opinion: State v. Ogden, 628 P.2d 1167 (Okla.Crim.App.1981), Still v. Dalton, 624 P.2d 76 (Okla.Crim.App.1981), State v. Truesdell, 620 P.2d 427 (Okla.Crim.App.1980), City of Tulsa v. Haley, 554 P.2d 102 (Okla.Crim.App.1976), State v. Durham, 545 P.2d 805 (Okla.Crim.App.1976), and Ray v. Stevenson, 71 Okla.Crim. 339, 111 P.2d 824 (1941).

Next, we turn to Section 1053 to determine whether this case is properly appealable by the State. Section 1053 authorizes limited instances in which the state may appeal; however, this “statutory authority cannot be enlarged by construction.” State v. Humphrey, 85 Okla.Crim. 153, 186 P.2d 664, 665 (1947). Because the “motion to quash for insufficient evidence” is a fiction not authorized by statute, we do not believe an appeal from such a motion is authorized by Section 1053. Any other interpretation would be a judicial enlargement of Section 1053.

Section 1053(1) allows the State to appeal a “judgment for the defendant on quashing or setting aside an indictment or information.” This section must be interpreted in light of Section 493 insofar as Section 493 is the only statutory authority for the quashing or setting aside of an information. Because we have determined that a “motion to quash for insufficient evidence” does not fall within the statutory language of Section 493, it cannot be appealed under Section 1053(1). See Jackson, 659 P.2d at 362; Patton, 637 P.2d at 1266.

Neither can this case be appealed under Section 1053(3) which allows the State to appeal “a question reserved by the State or a municipality.” To pursue an appeal on a reserved question of law, there must be a judgment of acquittal or an order of the court which expressly bars further prosecution. Matter of R.G.M., 575 P.2d 645, 646 (Okla.Crim.App.1978). In the instant case, there was not a judgment of acquittal. Neither did the trial court’s order sustaining the defendant’s motion expressly bar further prosecution. Therefore, the State is not entitled to appeal this ruling.

Because we find no statutory authority allowing the State to appeal from the district court’s ruling, sustaining a “motion to quash for insufficient evidence,” this appeal is DISMISSED.

The State attempted to appeal under 22 O.S.1981, § 1053 from the dismissal of Case No. CRM-87-123, by the Tulsa County District Court. DISMISSED.

BRETT, P.J., and BUSSEY, J., concur. LANE and LUMPKIN, JJ., dissent.