Braley v. State

• Decision Date: 16 December 1932
• Docket Number: A-8443.
• Citation: 18 P.2d 281,54 Okla.Crim. 219
• Parties: BRALEY v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

18 P.2d 281

54 Okla.Crim. 219

BRALEY v. STATE.

No. A-8443.

Court of Criminal Appeals of Oklahoma

December 16, 1932

Evidence disclosed that defendant and others entered home, and by force and fear compelled the owner to remain in house with one of intruders covering owner with a gun while the others entered the garage within curtilage of the home and took the automobile used by all in making escape.

Syllabus by the Court.

Where several persons, armed, enter the home of the owner, and by force and fear compel him to remain in the house, one of the persons covering and menacing him with a gun while the others enter his garage, within the curtilage of the home, and take therefrom his automobile, which is used by all the parties to escape, the taking is by force and fear, and from the immediate presence and possession of the owner.

Appeal from District Court, Jefferson County; Eugene Rice, Judge.

J. C Braley was convicted of robbery with firearms, and he appeals.

Affirmed.

Bridges & Ivy, of Waurika, for plaintiff in error.

J Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty Gen., for the State.

CHAPPELL J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Jefferson county of the crime of robbery with firearms, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of thirty years.

It appears from the record that Mr. and Mrs. Woodworth, who lived in the town of Ringling, had returned from prayer meeting to their home; that, after putting the car in the garage and locking the same, they were confronted by some men with drawn pistols, and compelled to give up the keys to the house and garage and to the bank of which Mr. Woodworth was an officer; that, after placing the Woodworths in the house the defendant was left to guard them with a pistol, and they were told that they would not be harmed if they complied with the wishes of their captors; that they must not make any noise and must obey commands; that the other parties, after taking some firearms and other property from the Woodworths, left the house and were gone several hours; that on the return of these parties the Woodworths heard their Nash sedan automobile being driven from the garage, within the curtilage of the premises where they lived; that the parties then called to the man inside, guarding the Woodworths, who was still covering and menacing them with his pistol; and that thereupon he backed out of the house and joined the other parties, who drove away in the Woodworth's automobile.

The charge was robbery with firearms in the taking of this automobile.

Defendant contends that there is a fatal variance between the information and the proof, in that the proof shows that the automobile was not taken from the immediate presence and possession of the Woodworths, but from a garage some distance from the house.

The meaning of the words "possession and immediate presence" has been defined and construed by the courts of other states in the following cases: State v Kennedy, 154 Mo. 268, 55 S.W. 293; Clements v. State, 84 Ga. 660, 11 S.E. 505, 20 Am. St. Rep. 385; State v. Calhoun, 72 Iowa, 432, 34 N.W. 194, 2 Am. St. Rep. 252; Commonwealth v. Homer, 235 Mass. 526, 127 N.E. 517; O'Donnell v. People, 224 Ill. 218, 79...