Cochran v. State
| Decision Date | 23 November 1910 |
| Citation | 111 P. 974,4 Okla.Crim. 379,1910 OK CR 216 |
| Parties | COCHRAN v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
(a) An indictment or information must charge but one offense; but where the same acts may constitute different offenses, or where the proof may be uncertain as to which of two or more offenses the accused is guilty, the different offenses may be set forth in separate counts in the indictment, and the accused may be convicted for either offense.
(b) Where a crime is divided into different degrees, the greater degree charged in an indictment or information includes the lesser degree.
(c) Where a defendant is indicted for an offense, the jury cannot legally convict the defendant of any other offense unless the commission of such other offense is necessarily included in that for which the defendant is indicted.
(d) Where the defendant had been indicted for robbery, he cannot be convicted for riot when the indictment contains but one count charging robbery.
(e) The same indictment or information may contain two counts, one count charging robbery, the other count charging riot provided the averments in the indictment or information show that both counts are based upon one and the same transaction and upon the trial the accused may be convicted of either of these offenses.
(a) A matter assigned as error in a motion for new trial and in the petition in error, but not shown by the case-made to be true cannot be considered in the appellate court. Matters occurring in open court in the progress of a trial, of which the judge must have knowledge, cannot be incorporated in the record by affidavits, but must be made a part of the case-made by proper recitals certified to by the trial judge.
(b) If, for any reason, a judge finds it necessary to retire from the courtroom during the trial of a criminal case, he should order that business shall be suspended during his absence. The judge, in criminal cases, should have the court under his immediate control every moment of time in which it is open and transacting business.
Appeal from District Court, Adair County; John H. Pitchford, Judge.
Colon Cochran was convicted of riot on a charge of robbery, and he appeals. Reversed and remanded.
Comp.Laws 1909, § 6699, 22 Okl.St.Ann. § 404, provides that an indictment or information must charge but one offense, but that where the same acts may constitute different offenses, or where the proof may be uncertain as to which of two or more offenses accused is guilty, the different offenses may be set forth in separate counts in the indictment, and accused may be convicted of either offense. Section 6875 provides that the jury may find accused guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment or of an attempt to commit the offense. Held that, where one is indicted for an offense, the jury cannot convict him of any other offense unless the commission of such other offense is necessarily included in that for which accused is indicted, and robbery "being" defined by section 2309, 21 Okl.St.Ann. § 791, as the wrongful taking of personalty in the possession of another from his person or immediate presence and against his will accomplished by force or fear, and section 2497, 21 Okl.St.Ann. § 1311, defining "riot" as any use of force or violence or any threats to use force or violence if accompanied by immediate power of execution by three or more persons acting together and without authority of law so that the statutory elements of riot are the use of force or violence or threats to use force or violence, while robbery may be committed without the use of immediate force or attempted force, an accused indicted for robbery cannot be convicted for riot when the indictment contains but one count charging robbery.
Williams & Williams, for plaintiff in error.
Smith C. Matson, Asst. Atty. Gen., for the State.
First. The defendant, after having demanded a severance, was tried upon an information in which he was jointly charged with Willie Cochran, Sam Sawney, and Nelson Teehee with the crime of conjoint robbery, alleged to have been committed upon Jonas Holt, John Rogers, and Jesse Thompson, in Adair county, Okl., on the 27th day of March, 1909. Upon the trial of this case, among other things the judge instructed the jury that the defendant might be convicted of riot. The jury returned the following verdict to the court: The court sentenced the defendant to five years' imprisonment in the state penitentiary at McAlester. All of these matters are fully set forth in the case-made and transcript of the record.
The first question which presents itself is as to whether or not under our system a conviction for riot can be had upon an information charging robbery. Section 6697, Snyder's Comp. Laws Okl. 1909, is as follows: Section 6699 is as follows: "The indictment must charge but one offense, but where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment and the accused may be convicted of either offense, and the court or jury trying the cause may find all or either of the persons guilty of either of the offenses charged, and the same offenses may be set forth in different forms or degrees under different counts; and where the offends may be committed by the use of different means, the means may be alleged in the alternative in the same count."
From these sections it is seen that the indictment or information, with the single exception therein stated, must charge but one offense and must be certain and direct as regards that offense. When a crime is divided into different degrees, the greater degree charged in an indictment or information always includes the lesser. This is the rule under every system of criminal pleading of which we have knowledge, and this rule is recognized by section 6875, Snyder's Comp. Laws Okl. 1909, which section is as follows: "The jury may find the defendant guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense." This section must be construed in connection with section 6699, hereinbefore quoted, which provides that an indictment must charge but one offense. It therefore cannot mean that the jury can convict a defendant of any offense necessarily included in the allegations of the indictment, for a skillful pleader could so shape the allegations of an indictment as to include several separate and distinct offenses in the same count. It will be found upon an analysis of this section that the jury have no power to convict a defendant of any offense unless it is necessarily included in the offense with which he is charged in the information or indictment, or an attempt to commit such offense. If, therefore, the offense of riot is not necessarily included in that of robbery, a defendant charged only with robbery cannot lawfully be convicted of riot. "Robbery" is defined by our statute to be the wrongful taking of personal property in the possession of another from his person or immediate presence and against his will, accomplished by means of force or fear. See section 2309, Snyder's Comp. Laws Okl. 1909. Section 2312 is as follows: "The fear which constitutes robbery may be either: (1) The fear of an unlawful injury, immediate or future, to the person or property of the person robbed or of any relative of his, or member of his family; or (2) the fear of an immediate and unlawful injury to the person or property of any one in the company of the person robbed, at the time of the robbery."
From this it is seen that force is not a necessary element in the crime of robbery. If personal property is wrongfully taken from the possession of another from his person or immediate presence and against his will, through fear of an unlawful injury, immediate or future, to the person or property of the person robbed, or of a relative of his or member of his family, such taking is just as much robbery as though it was committed by actual force. Section 2497 of Snyder's Comp. Laws Okl. 1909, is as follows: "Any use of force or violence, or any threats to use force or violence if accompanied by immediate power of execution, by three or more persons acting together and without authority of law, is riot."
From this it is seen that the statutory elements of the crime of riot are the use of force or violence, or threats to use force or violence, accompanied by immediate power of execution. Unless these elements exist, there can be no riot but robbery may be committed with an entire absence of all of these elements. The offense of robbery may be committed when there was no immediate force used or attempted to be used, through fear of future injury to the person or property of the person robbed, or of any relative of his or member of his family. But this would not be true as to riot. We therefore cannot say that riot is a necessary element of robbery; and, if it is not a necessary element of robbery, neither can it be said that it is necessarily included in robbery. Robbery is divided into three classes, each of which is subject to a...
To continue reading
Request your trial