Fields v. State

• Decision Date: 06 September 1961
• Docket Number: No. A-12980,A-12980
• Citation: 364 P.2d 723
• Parties: Judy Sue FIELDS, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 723

364 P.2d 723

Judy Sue FIELDS, Plaintiff in Error, v.STATE of Oklahoma, Defendant in Error.

No. A-12980.

Court of Criminal Appeals of Oklahoma.

Sept. 6, 1961.

Syllabus by the Court.

1.In order to constitute a taking from the immediate presence of the victim under 21 O.S.(1951)§ 791, it is not necessary that the victim see or hear the taking of the property.It is sufficient if it is shown that the property was under the control of the victim.

2.Where a reversal is sought based upon alleged errors made during the course of the trial, proper objections must be interposed and preserved in the record before it will be the basis of reversal in instances where no fundamental right of the defendant has been violated.

3.Evidence of separate and similar offenses is admissible when it is material and proper to show (1) Motive, (2) Intent, (3) Absence of mistake or accident, (4) Identity of the person charged with the commission of the crime for which an accused is put on trial, and (5) Common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other.

4.Every citizen charged with a criminal offense is entitled to a public trial by an impartial jury whether guilty or innocent, according to the due and orderly course of the law, and it is the duty of courts to see that the guaranty of such a trial is upheld.Oklahoma Constitution, Article 2, section 20.

5.When the conversation is with one who is not interested in the outcome of the criminal prosecution and there is no testimony that the occurrence was more than casual, it will not constitute prima facie misconduct of the jury so as to require reversal unless it be shown that the defendant was prejudiced thereby.

6.After the case has been submitted to the jury for their determination, any unauthorized communication of an officer or official of the court or any third person creates a presumption of prejudice against the defendant and this presumption must be overcome by competent evidence presented.

7.Before the case has been submitted to the jury it is their duty not to converse among themselves or with anyone else on any subject connected with the trial.When conversation is had between a juror and an attorney in the case on any subject connected with the trial it is an act of misconduct of such a nature so as to create a presumption of prejudice against the other party.To overcome this presumption the juror should be subpoenaed and questioned either before or when the motion for new trial is heard.

8.In the absence of sworn testimony relating the entire conversation between a juror and an attorney in the casewe will not speculate as to the motive of the juror in engaging in the conversation, the text of the conversation or the effect it had upon the verdict of the jury.

9.It is misdemeanor for any juror to wilfully permit any communication to be made to him, or receive information relative to any cause pending before him, except according to the regular course of proceeding upon the trial of such cause.21 O.S.(1951)§ 385.

Appeal from District Court, Oklahoma County; W. R. Wallace, Jr., Judge.

Judy Sue Fields was convicted by a jury of the crime of robbery with firearms.Reversed and remanded.

Valdhe F. Pitman, Sam W. Moore, Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., for defendant in error.

BUSSEY, Judge.

The plaintiff-in-error, Judy Sue Fields, and herein referred to as the defendant, was charged in the District Court of Oklahoma County by information with the crime of robbery with firearms.The charge was based upon an armed robbery of the 7-11 Food Store located at 2811 Dorchester in Oklahoma City.It was alleged that the defendant acted conjointly with others to commit the robbery, as a 'lookout', a severance was granted and the defendant was tried separately in the instant case.The trial was before a jury which found the defendant guilty and left the punishment to the court.The court assessed her punishment at 12 years in the Oklahoma State Penitentiary and this appeal was duly perfected.

There are three basic assignments of error on appeal as follows:

1.The evidence fails to sustain the crime charged in the amended information.

2.Errors is admission and rejection of evidence and other rulings and remarks of the trial court and arguments of counsel for the state which prevented the defendant from having a fair and impartial trial.

3.Misconduct of the jury and the prosecutor.

The last assignment of error, as will be hereinafter discussed, must be sustained.Therefore the errors urged in the other propositions will not be dealt with at length but we will comment thereon to provide a guide in the retrial of the cause.

Under the first assignment of error counsel for the defendant asserts that the 'taking' as revealed by the testimony and evidence adduced was not a taking from the immediate presence of the victim, as is required by our robbery statute, Title 21 section 791.The undisputed facts were that the money alleged to have been taken by the robber was in a car which was parked outside the Food Store.The victim was an employee of said store and was in the process of collecting the prior day's receipts from all 7-11 Food Stores in Oklahoma City, to be deposited in a bank.He had picked up the money from the store on Dorchester and placed it in a sack along with other money collected from other stores in the City.He had gone to his car which was parked immediately outside the store but had returned into the store for a purpose not here material.He left the money in the car and while he was in the store the robber came in and required the victim and all other persons in the store to enter a refrigeration vault in the store and the robbery took place.He was forced to disclose that the sack of money was in the car parked outside and while locked in the vault the money was taken from the car by the robber.The defendant asserts that since the victim was in the vault it was impossible to see the car from which the money was taken and therefore it was not taken from the immediate presence of the victim.With this line of reasoning we cannot agree.Although this particular question apparently has never been before this court it is not a new or novel question of law.The robbery statutes of those jurisdictions in which the question has been raised are of the same import as our statute.Only the working varies from state to state.'The meaning of the statutes, as expressed in the language, is that the property must be so in the possession or under the control of the individual robbed that violence or putting in fear was the means used whereby the robber took it.'46 Am.Jur. 142, Robbery§ 7.For example when the subject matter of the robbery was located in another room of the house, as in State v. Calhoun, 72 Iowa 432, 34 N.W. 194, or in another building on the premises, as in Clements v. State, 84 Ga. 660, 11 S.E. 505, it was held to be a robbery within the meaning of the statute.We feel that the reasoning used in those cases applies to the factual situation in the case at bar.To hold otherwise would require our Legislature to word and design our laws so as to cover every conceivable factual situation which obviously would be an unsurmountable task.For cases of like import seePeople v. Covelesky, 217 Mich. 90, 185 N.W. 770, andState v. Cottone, 52 N.J.Super. 316, 145 A.2d 509.

Turning to the second proposition of error relating to the admission and exclusion of evidence and other rulings of the trial courtwe must observe initially that if counsel bases error upon alleged mistakes or errors made during the course of the trial, proper objections must be interposed and preserved in the record before it will be the basis of reversal in instances where no fundamental right of the defendant has been violated.Also, we cite the frequently announced rule by this court that evidence of separate and similar offenses is admissible when it is similar and proper to show (1) Motive, (2) Intent, (3) Absence of mistake or accident, (4) Identity of the person charged with the commission of the crime for which an accused is put on trial, and (5) Common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other.It is necessary when the above rule is applicable to limit and instruct the jury as to the purpose of allowing such evidence and one desiring such instruction should submit requested instructions to the trial court in this connection.

This then leads us to the determinative proposition in this case.A brief r esume of the events that transpired in connection with this proposition as reflected in the case-made is necessary.After all the evidence on behalf of both parties was presented the following took place:

'The Court: Ladies and gentlemen of the jury, it will take just a few minutes to draw up the instructions in this case.And during that period of time, feel free to go down to the refreshment stand, if you want to, but remember the admonitions of the Court about discussing this case.And we will notify you when to come back.After you finish downstairs, if you will stay in this general area, we will let you know when to come back.

'(Thereupon, jury retires from the jury box.)

'(The following proceedings were had at the bench:)

'Mr. Pitman: Comes now the defendant, by the through her counsel, Val Pitman, and moves for a mistrial at this time, for the reason that Juror Ray McMahon came down from the jury box out of the presence of the Court, discussed the drawing or the location of the...