Cotton v. State , 22 Okla. Crim. 252 ( 1922 )

In this case an assault, without intent to kill, was charged. The case was tried on that theory. In pleading the details of the assault, a battery was also stated; but, in the absence of any objections to these unnecessary details, the assault charge stood unimpaired, and the case was tried on that theory. Not so in the cases of Parks v. State, 14 Okla. Cr. 413, 171 P. 1129, and Harris v. State, 15 Okla. Cr. 369, 177 P. 122, where an assault with firearms was stated, but no battery charged, though the facts showed the shooting of defendant's adversary, indicating there might have been an intent to kill. Those cases under those facts might come within the purview of section 2336, R.L. 1910, an impossibility under this prosecution.

The statutory provisions of this state relating to the various kinds of felonious assaults are complex and somewhat conflicting. We are sometimes compelled to treat these questions as they arise, without making a clear-cut classification, except that where the record shows that the accused could not have been misled, and that another prosecution growing out of the same transaction is barred, a conviction will not be disturbed on the ground of duplicity. The reasons for invoking the rule are two: First, to enable the accused to make a definite defense; second, to protect him against another prosecution for the same offense. Where neither of these reasons applies, the rule should not be invoked.

In this case we firmly believe the information was sufficient to sustain the conviction of felonious assault, and under the circumstances there was no fatal variance between the allegations and the proof, and that the incidental recital of a battery was mere surplusage. An assault is always included in a battery. The rights of the defendant were sufficiently safeguarded, so that he is now immune from prosecution for any other felonious assault and battery growing out of the same transaction.

We therefore see no reason for reversing our former decision in this case. Mandate forthwith.

DOYLE, P.J., and MATSON, J., concur.