Section 5695, Revised Laws 1910, is as follows:
"An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where *Page 10 the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit."
Section 17 of article 2 of the Constitution of Oklahoma provides:
"No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information.
"No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination.
"Prosecutions may be instituted in courts not of record upon a duly verified complaint."
Section 5695, supra, is a statute carried forward from the territorial Code. Prior to statehood there was no authority to prosecute a felony by information. All such prosecutions at that time had to be by indictment.
Since the adoption of the Constitution as authorized by section 17, article 2, supra, prosecutions for felony may now be had by information provided the defendant has been accorded a preliminary examination before some examining magistrate, or has waived such preliminary examination. It is clear, therefore, that as to prosecutions for felony by information no amendment to the information in the trial court would be permissible, either before or after plea, which had the effect of charging an offense for which no preliminary examination had been given or waived by the defendant.
In the case of Williams et al. v. State, 6 Okla. Cr. 373,118 P. 1006, it is held:
"Under the constitutional provision the precedent fact that a preliminary examination has been had or waived constitutes *Page 11 the jurisdictional basis for a prosecution on information in the district court. It is the fact that there was a preliminary examination, or a waiver thereof, and a judicial determination thereon by the examining magistrate that a felony has been committed, and that there is probable cause to believe that the defendant is guilty thereof, that confers jurisdiction on the district court and authorizes the county attorney to file an information in said court charging the crime committed according to the facts in evidence on such examination; or for the offense charged in the preliminary information when such examination has been waived by the defendant."
In connection with the holding of this court in the Williams Case, supra, it is essential, in applying the law to the questions involved in this appeal, that consideration be given to sections 5673, Revised Laws 1910, 5680, Revised Laws 1910, and 5692, Revised Laws 1910, which, in the order named, are as follows:
"At the examination the magistrate must, in the first place, read to the defendant the complaint on file before him. He must also, after the commencement of the prosecution, issue subpoenas for any witnesses required by the prosecutor or the defendant."
"If, however, it appear from the examination that any public offense has been committed, and that there is sufficient cause to believe the defendant guilty thereof, the magistrate must in like manner indorse on the complaint an order signed by him to the following effect: It appearing to me that the offense named in the within complaint mentioned (or any other offense, according to the fact, stating generally the nature thereof), has been committed, and that there is sufficient cause to believe the within-named A.B. guilty thereof, I order that he be held to answer the same.
"When a magistrate has discharged a defendant, or has held him to answer, he must return immediately to the clerk of the district court of the county, the warrant, if any, the complaint, the depositions, if any have been taken, of all the witnesses *Page 12 examined before him, the statement of the defendant, if he have made one, and all undertakings of bail or for the appearance of witnesses, taken by him, together with a certified record of the proceedings as they appear on his docket."
Also to the first subdivision of chapter 68, Session Laws 1913, p. 106:
"The witnesses must be examined in the presence of the defendant, and may be cross-examined by him. On the request of the county attorney, or the defendant, all the testimony must be reduced to writing in the form of questions and answers and signed by the witnesses, or the same may be taken in shorthand and transcribed without signing, and in both cases filed with the clerk of the district court, by the examining magistrate. * * * In no case shall the county be liable for the expense in reducing such testimony to writing, unless ordered by the county attorney."
From the foregoing provisions it appears that in conducting preliminary examinations the magistrate is required to issue subpoenas for the witnesses for the state and for the defendant, and, when requested either by the county attorney or the defendant, the testimony of such witnesses must be either reduced to writing in the form of questions and answers or taken in shorthand and transcribed and thereafter filed with the clerk of the district court by the examining magistrate. Also, where the defendant is held to answer, the magistrate should indorse on the information or complaint an order signed by him either "that the offense named in the within complaint mentioned, or any other offense, according to the fact, stating the nature thereof, has been committed, and that there is sufficient cause to believe the defendant guilty thereof," and also an order "that he be held to answer the same." And, further, the magistrate must return immediately to the clerk of the district court of the county "the complaint, the warrant, the depositions, if any have been taken, of all the witnesses examined, *Page 13 the statement of the defendant, if one has been made, all undertakings of bail, and a certified record of the proceedings as they appear on his docket."
The foregoing files in the office of the clerk of the district court are the indicia of the jurisdiction of the district court to permit the trial of the defendant by information subsequently filed in said court by the duly authorized county attorney. Without the defendant having been accorded a preliminary examination, or without his having waived the same, the district court would have no jurisdiction to try the defendant upon an information charging a felony.
In the Williams Case, supra, this court, in effect, held that, after a judicial determination by an examining magistrate that a felony has been committed, and that there is probable cause to believe that the defendant is guilty thereof, jurisdiction is conferred on the district court such as to authorize the county attorney to file an information in said court charging the crime committed, either according to the facts in evidence on such examination (that is, where evidence is taken at the examination), or, if no evidence is taken, then for the offense charged before the examining magistrate.
In this case the record discloses that there was no waiver of a preliminary examination by the defendant, but that both witnesses for the state and for the defendant testified before the examining magistrate.
It does not appear from the record, however, that any request was made that this testimony be reduced to writing or taken in shorthand and transcribed, and for that reason there is no showing that any transcript of the testimony of the witnesses, as given in the preliminary examination, was filed with the other papers with the clerk of the district court. If such testimony was reduced to *Page 14 writing and so filed, the trial court could readily take judicial notice of the fact that the amendment permitted to the original information accorded with the facts in evidence at the preliminary examination. If, on the other hand, no such transcript of the evidence at the preliminary examination was taken and filed with the clerk of the district court, then the burden would be upon the defendant to support his motion to quash the information (on the ground that he had been accorded no preliminary examination), by a showing that the testimony of the witnesses before the examining magistrate disclosed an offense different from that charged in the amended information. There was no attempt on the part of the defendant to support his motion to quash the amended information by any such showing, but he here contends that, in the absence of a transcript of the testimony as taken before the examining magistrate, the court must look alone to the charge as contained in the preliminary complaint or information. That is not the holding of this court, but in the Williams Case this court held specifically to the contrary, and said that —
"Where the preliminary examination was not waived the county attorney is authorized to file an information charging the crime committed according to the facts" in evidence on such examination.
Construing the foregoing constitutional provision and statutes in pari materia, the conclusion is reached that in this case the county attorney was authorized to charge the offense in the district court "according to the facts in evidence on the preliminary examination"; that, if the original information filed by him did not charge such offense "according to such facts," he was authorized, with leave of the court, to amend such information to conform to such facts, even after plea had been entered to the original information; that such an amendment was permissible, even though the offense as charged in *Page 15 the amended information differed materially from that charged in the preliminary information, in view of the fact that in this case the defendant did not waive his preliminary examination; that the burden was upon the defendant, where evidence had been taken at the preliminary examination and no transcript of it filed with the clerk of the district court, to make an affirmative showing that the facts charged in the amended information did not support the crime as found to have been committed from the evidence adduced at the preliminary hearing.
The foregoing excerpts of the record disclose that the defendant failed to meet the burden resting upon him. There were circumstances under which the amendment was permissible, and the presumption must obtain that those circumstances existed until the contrary was made to appear on the hearing of the motion to quash the amended information. Such showing is not conclusive merely because the preliminary information alleged the ownership of the property to be in a person with a different name than that alleged in the amended information.
Another reason appears. It is evident from the pleadings that the allegations of ownership of the stolen property in the preliminary information and in the amended information in the district court were not materially variant. It is a well-established legal principle that the actual condition of the legal title of the property alleged to have been stolen is immaterial to the thief; so far as he is concerned, one may be taken as the owner who is in peaceable possession of the property and whose possession was unlawfully disturbed by the taking. The possessor of the goods from whom the thief took them may therefore properly be described as the owner of the property in the indictment or information. *Page 16
The preliminary information charged both the ownership and the possession of the stolen property to be in one C.L. Puckett. In addition to such allegations, and as further identifying the crime, there was also an allegation that the property was stolen from the lease of C.L. Puckett in Nowata county. The allegation of ownership therefore was not the only means that defendant had of identifying the offense from a perusal of the preliminary information. He was informed, in addition to ownership, that he was charged with stealing oats in the actual possession of C.L. Puckett, and from the lease of C.L. Puckett in Nowata county. Under such circumstances, we believe the amendment as permitted to the original information did not materially change the crime, for the reason that under the original information as filed in the district court it would have been permissible to show that Frank Farbro was the actual owner of the property, provided the additional showing was made, as it was in this case, that the property stolen, at the time of its taking, was in the actual possession of C.L. Puckett and was taken from his leasehold in Nowata county, Okla. 25 Cyc. p. 89.
The evidence in this case on the part of the state clearly establishes the guilt of the defendant, and discloses that in the commission of the larceny as charged he also committed the graver offense of burglary. The punishment imposed is merited by the evidence.
For reasons stated, it is held that there was no error in permitting the information to be amended in the form and manner in which it was amended in this case, and that the motion to quash the amended information was properly overruled.
The judgment is affirmed.
DOYLE, P.J., and BESSEY, J., concur. *Page 17