# State v. Hammond

> Court of Criminal Appeals of Oklahoma · June 13, 1989 · 775 P.2d 826

URL: https://www.frixlaw.com/law-library/cases/9587054

## Case

- **Full name:** STATE of Oklahoma, Appellant, v. Michael Wayne HAMMOND, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** June 13, 1989
- **Citations:** 775 P.2d 826; 1989 OK CR 25; 1989 Okla. Crim. App. LEXIS 29; 1989 WL 65468
- **Precedential status:** Published
- **Opinion:** Dissent by Lane
- **Judges:** Parks, Brett, Bussey, Lane, Lumpkin
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by State v. Young, 65 O.B.A.J. 1571 (1994).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9587054

## Opinion text

LANE, Judge,
dissenting:
I respectfully dissent to the majority opinion and also the dissenting opinion of Judge Lumpkin for the reason that I believe that the motion being considered by the trial court was in actuality a demurrer. The motion was styled “Amended Motion To Quash”, but it stated:
*829 “Comes Now the Defendant, Michael Wayne Hammond, by and through his attorney of record, Everett R. Bennett, Jr., and hereby moves this Honorable Court to quash the Information filed in this case on the grounds that the State of Oklahoma has failed to allege the necessary elements in the Information for the crime of Assault and Battery_”
In Whaley v. District Court of Mayes County, 422 P.2d 227 (Okl.Cr.1966), we held that the character of a pleading is to be determined by the allegations in its body and the prayer for relief rather than the heading. 22 O.S.1981, § 504 permits a demurrer to an indictment or information when it appears upon the face of the indictment or information that “the facts stated do not constitute a public offense.” The language of Appellee’s Amended Motion to Quash is a paraphrase of the quoted statutory language, and as such, creates a demurrer. The trial court erred in taking testimony pursuant to Appellee’s motion because a ruling on the demurrer must be based on the face of the information and the allegations contained in that pleading. State v. Truesdell, 620 P.2d 427, 428 (Okl.Cr.1980).
Having found that in fact the Amended Motion to Quash was a demurrer to the Information, we must now determine whether or not it is an order from which the State may appeal. I would agree with the language of the majority opinion that the ruling of the trial court creates a bar to further prosecution because of the language of 22 O.S.1981, § 508 and is appeal-able by authority of 22 O.S.1981, § 1053(8) only upon a question reserved by the State.
As to the substantive issue presented by this appeal, I would agree with Judge Lumpkin that any force, no matter how slight, would constitute an element of the crime of Assault and Battery and further state that any unauthorized touching is all that is necessary to establish a battery. However, because of the statutory rule that a trial court’s ruling against the State of Oklahoma on a demurrer is a bar to further prosecution, I would hold that the State may not proceed against the Appel-lee.
I therefore, DISSENT.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9587054. Public record. Not legal advice.