Monaghan v. State
| Decision Date | 14 August 1913 |
| Citation | 134 P. 77,10 Okla.Crim. 89,1913 OK CR 263 |
| Parties | MONAGHAN v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
The granting or refusal of a continuance in a criminal case is largely a matter of discretion of the trial court, and this court will not reverse the trial court on the question of a matter which rests in the sound discretion of the court unless it is shown that there has been an abuse of discretion.
To constitute "robbery," as distinguished from "larceny from the person," there must be force violence, or intimidation in the taking. Therefore, where there is no evidence tending to show that the defendant obtained or retained the personal property alleged to have been taken by force and violence or by putting in fear, the crime is grand larceny, and not robbery, and a verdict of guilty of robbery in the first degree is contrary to law and the evidence.
Merely snatching the property from the person of another, without violence or putting in fear, is not robbery, except where there is some injury or violence to the person of the owner or where the property snatched is so attached to the person or clothes of the owner as to afford resistance.
The force and violence which is essential to the crime of robbery must be concomitant with the taking of property from the person of another.
The jury are bound to take the law from the court, and questions of fact are to be decided by the jury. The charge of the court must not invade the province of the jury, and should not extend beyond a plain statement of the law applicable to the case. Philosophic disquisition on the "presumption of innocence" or dissertation upon the nature of evidence should always be omitted.
Appeal from District Court, Craig County; Preston S. Davis, Judge.
Thomas Monaghan was convicted of robbery, and appeals. Reversed.
O. L Rider, of Vinita, for plaintiff in error.
Chas. West, Atty. Gen., and Smith C. Matson and C.J. Davenport, Asst. Attys. Gen., for the State.
This appeal is prosecuted from a conviction had in the district court of Craig county, in which the defendant was found guilty of robbery in the first degree, and sentenced to imprisonment at hard labor in the penitentiary at McAlester for a term of 10 years. The judgment and sentence was rendered and entered on the 17th day of June, 1912. The appeal was perfected by filing in this court December 11, 1912, a petition in error with case-made attached. The Attorney General has filed a motion to strike the case-made and consider this appeal on the transcript of the record, because said case-made was not served on the county attorney within the time allowed by the trial court. The record shows that at the time of entering judgment the court extended the time for making and serving case-made 60 days, and thereafter on the 27th day of July granted an additional extension of 60 days, and thereafter on the 17th day of October granted an additional extension of 60 days. and that the case-made was served on the county attorney on the 21st day of November, and was settled and signed on the 7th day of December. The certificate of the trial judge recites: "I do hereby certify that the within and foregoing case-made, and the amendments thereto, have been served in due time, and the same duly submitted to me for settlement and signing, as required by law." Thus it appears that the orders extending the time for making and serving the case-made were in addition to the statutory time of 30 days as provided by section 6951, Snyder's Sts. The motion to strike is therefore overruled.
The information charged, in substance, that on or about the 19th day of December, 1911, the said Thomas Monaghan, did willfully, unlawfully, and feloniously, with force and violence, take from the person of one J. E. Armstrong, and against his will, personal property, to wit, $2.50, and one railroad passenger ticket from Vinita, Okl., to Boonville, Mo., of the value of $6.50, said personal property then and there being in the possession of said J. E. Armstrong, with the intent on the part of him the said Thomas Monaghan to then and there rob the said J. E. Armstrong.
The testimony in the case was substantially as follows:
J. E. Armstrong, the complaining witness, testified: That he lived in Cooper county, Mo., and came to Vinita on the Katy Flyer on the 19th day of December, and while waiting at the depot to take the 4 o'clock train to Blue Jacket, he was talking to several fellows there, and was drinking "right smartly." That he went to sleep and caught the defendant trying to steal something from him, and a short time after that he was in the closet with his clothes unloosed, and while he was unbuttoning his suspenders, the defendant "socked" his hand into his pocket, and said: "God damn you; give me that pocketbook"--and he got the pocketbook and got away from him. That he had too much whisky to defend himself, or he could not have got away so easy. That he followed him a little piece, and saw two fellows starting after him, and he hallooed to them: --and they caught him. That there was a $5 bill and a little change and a ticket from Vinita to Boonville, Mo., in the pocketbook. That he did not consent to the defendant's taking his pocketbook. That they put him in jail, but released him the next morning. On cross-examination he stated that he was drinking when he arrived at Vinita; that he had a little square grip with a quart of whisky, a jar of honey, and some cakes in it, and he had a bottle of whisky in his pocket; that he gave the defendant and one or two others a drink of whisky in the toilet room; that he did not know how many drinks he gave the defendant; that he also visited some negro joints across the track near the depot; that when they drank his whisky the fellow with the defendant wanted him to give him a dollar to get some more whisky, and he told him he did not have any money.
J. W. May testified that he saw the defendant running from Armstrong, and followed nim with a fellow named Pyatt, who caught him about 300 yards from the depot; that Pyatt let him go, and said, "I seen him throw something out of his pocket as he came around that corner;" that witness then took Armstrong to jail.
Jake Smith testified that he was present when the sheriff arrested the defendant, and heard them say that a man was robbed, and went to see if he could find anything, and found a pocketbook with a ticket in it to Boonville; that a fellow named Pyatt gave him directions where to look.
Charles A. Davidson testified that he saw witness Armstrong near the depot so drunk he could hardly stand; he hallooed that he had been robbed, "Catch him," and a man that he did not know caught the defendant and threw him down; that the defendant had a knife in his hand, and he ran over and took the knife away from him.
Lee R. Mitchell, clerk of the district court of Craig county, over the defendant's objection, was permitted to identify a subp na issued to the sheriff of Muskogee county, commanding W. B. Pyatt to appear as a witness for the state in the case on trial, together with the signed order of the court for W. B. Pyatt to appear, and the return of the sheriff of Muskogee county, showing that said W. B. Pyatt was not found in said county.
C. Caldwell, county attorney, of Craig county, testified that the W. B. Pyatt named in said subp na is the man referred to as Pyatt by the witness who testified, and over the defendant's objection was permitted to state that on Monday last "I finally got in communication with Mr. Pyatt, or some one answering to the name of W. B. Pyatt, in Muskogee, and endeavored to get him here as a witness." Thereupon the defendant moved that the statement be withdrawn from the consideration of the jury. The motion was overruled; the court saying to the jury that:
H. E. Ridenhour, sheriff, testified that when he arrested the defendant, he had one dollar in silver and three half dollars.
On behalf of the defendant, G. A. Whitney testified: That he was with the defendant in the waiting room of the depot, and the complaining witness Armstrong invited them to go in the toilet and have a drink with him; and they went with him, he had a four-ounce bottle of whisky, and they drank it up. Armstrong then said: "I would buy some more, but I have only got 15 cents." That he had a little telescope, and they opened it up and it had a little can of something and big black bottle. That they had been in there about 20 minutes when witness left. That he saw the defendant have $2 or $3 in his hand at a drug store just before they went...
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State v. Robertson, 96-186-M.P.
...aff'd in relevant part by 296 Md. 289, 462 A.2d 1192 (1983); Sein, 590 A.2d at 668; Curley, 939 P.2d at 1105; Monaghan v. State, 10 Okla.Crim. 89, 134 P. 77, 79 (1913). It is our conclusion that the majority rule better supports the rationale that distinguishes robbery from larceny. Robbery......