Opinion
No. A-4965.
Opinion Filed August 11, 1925. Rehearing Denied October 30, 1925.
1. Indictment and Information — Misnomer of Offense in Information not Affecting Validity. The misnomer of an offense in an information does not affect its validity, provided there is contained in the information sufficient direct allegations of the fact to charge the offense defined by the statute.
2. Continuance — Time of Trial in Misdemeanor Case — Time to Prepare Defense. A misdemeanor case, after plea is entered, is at issue, and stands for trial, unless it be made to appear to the court that the defendant requires time to prepare his defense. Upon a proper showing of fact, the court should allow a defendant a reasonable time to procure witnesses, and to prepare for trial.
3. Trial — Sufficiency of Instructions as Whole. Where the instructions as a whole taken and considered together fairly cover the law of the case, they are sufficient.
4. Appeal and Error — Conviction for Maintaining Liquor Nuisance Sustained by Evidence. The entire record carefully examined, and evidence found sufficient to support the verdict.
Appeal from County Court, Muskogee County; W.W. Cotton, Judge.
Matt Collins and Monnie Collins were convicted of maintaining a public nuisance, and they appeal. Affirmed.
Kelly Brown and P.A. Gavin, for plaintiffs in error.
Geo. F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
The plaintiffs in error will be referred to as defendants, as in the court below.
The record discloses that defendants were convicted of maintaining a nuisance and each sentenced to pay a fine and to imprisonment in the county jail. The defendants were duly arraigned, pleaded not guilty, and were tried to a jury.
The only assignments of error urged by the defendants which are necessary to consider are as follows:
"First, error in overruling the defendants' demurrer to the information; second, error in overruling the defendants' motion to strike from the setting of the criminal docket; third, error in refusing requested instructions and error in instructions; fourth, insufficiency of the evidence."
The first assignment of error relates to defendants' demurrer to the information as being defective for the reason that the same charges defendants with maintaining a "whisky nuisance," which it is alleged is not covered by the statute defining a "public nuisance," and does not constitute a public offense. Following the former holdings of this court, the information is sufficient to charge a public offense. An information is sufficient when it clearly and distinctly states the facts in ordinary and concise language, which construed under the ordinary rules of construction of the English language would enable a person of common understanding to know what is meant, and sufficiently certain to enable a defendant to prepare his defense and to plead a judgment of acquittal or conviction in bar to a subsequent prosecution. Section 2563, Comp. St. 1921; Arnold v. State, ___ Okla. Cr. ___, 132 P. 1123; Maples v. State, 30 Okla. Cr. 151, 235 P. 264.
When the essential facts constituting a crime are alleged, the mere misnomer of the offense in the information is not prejudicial. Speer v. State, 130 Ark. 457, 198 S.W. 113; State v. Robey, 74 Wn. 562, 134 P. 174; State v. Moser, 94 Wn. 465, 162 P. 582; Luther v. State, 18 Okla. Cr. 664, 197 P. 533.
Error is also assigned in that case against defendants was on August 28th, the day plea was entered, set for trial on August 30th, and they were not given sufficient time to procure attendance of witnesses and make ready for trial. The record does not disclose that any effort was made to procure the witnesses, nor does it disclose the names of their whereabouts at the time the case went to trial. Trial was not had until August 31st, three days after arraignment, which would have been ample time to have procured the desired witnesses, had due diligence been used. If witnesses could not be procured, a proper showing for continuance should have been made, setting out the facts as in other cases. Jacobs v. State, 29 Okla. Cr. 140, 232 P. 861.
It is further argued that the evidence is insufficient to sustain the conviction. It is well settled that a verdict will not be disturbed for insufficiency of the evidence when there is evidence from which the jury may reasonably or logically draw the conclusion of the defendant's guilt.
Error is also assigned in the court's refusal to give defendants' requested instructions Nos. 1 and 2. An examination of the court's instructions discloses that the same fairly cover the law of the case, and that there was no prejudicial error in the refusal of defendants' requested instruction.
Various other matters are presented in the briefs, all of which have had our careful attention. Upon the whole case we find no error that requires a reversal.
The case is affirmed.
BESSEY, P.J., and DOYLE, J., concur.