Newton v. State

• Decision Date: 11 January 1935
• Docket Number: A-8757.
• Citation: 40 P.2d 688,56 Okla.Crim. 391
• Parties: NEWTON v. STATE. [a1]
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

40 P.2d 688

56 Okla.Crim. 391

NEWTON v. STATE. ^[a1]

No. A-8757.

Court of Criminal Appeals of Oklahoma

January 11, 1935

Rehearing Denied Feb. 8, 1935.

Syllabus by the Court.

1. Section 2543, Okla. Stat. 1931 (chapter 44, Sess. Laws 1925 amending chapter 85, § 1, Sess. Laws 1923), provides that the crime of robbery may be committed against a business house or banking institution, under the conditions therein stated, in the same way, as it may be committed against a person.

2. Words used in a statute to define a public offense need not be strictly pursued in an information, but other words conveying the same meaning may be used (section 2890, Okla Stat. 1931). Held that the information sufficiently charges and the proof sustains the crime of robbery of a banking institution.

3. A prior conviction in a United States court of a crime which if committed within this state, would be punishable by imprisonment is a sufficient basis for a prosecution of a subsequent charge, as a second offense, under section 1820, Okla. Stat. 1931, which imposes heavier penalties for persons who have prior thereto been convicted of such a crime in any other state, government, or country.

4. The granting of a change of venue is under the statute a matter resting within the sound discretion of the trial court, and this court will not reverse the judgment unless it clearly appears that there has been an abuse of such discretion.

5. Where the instructions as a whole, considered and construed together, contain no fundamental error nor misstatement of law calculated to mislead the jury to the injury of the defendant, the judgment will be affirmed.

Appeal from District Court, Grant County; J. W. Bird, Judge.

Willis Newton was convicted of the crime of robbery with firearms, and he appeals.

Affirmed.

Hudson & Hudson, of Tulsa, W. H. Hills, of Enid, and J. E. Falkenberg and W. H. C. Taylor, both of Medford, for plaintiff in error.

J. Berry King, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.

EDWARDS Presiding Judge.

The plaintiff in error, hereinafter called defendant, was convicted in district court, Grant county, of robbery with firearms and was sentenced to serve a term of twenty years in the state penitentiary.

On the night of April 13, 1932, the First National Bank of Medford was robbed by two men who entered by breaking windows. The steel safe, four inches in thickness, was burned through by an acetylene torch and more than $4,400 in money taken, in addition to bonds and travelers' checks. At the time, one Ed Heiland was night watchman or night marshal, whose duty it was to guard the bank and other business houses during the night. About 1:15 a. m. he was in a café about a block from the bank with the proprietor and another person. Heiland had just ordered a cup of coffee when defendant came in with a pistol in his hand and with a handkerchief over his face. He required those in the café to lie on the floor and stretch their hands before them, he then tied the hands of all, tied them together, took the pistol from Heiland, and forced them to go with him about a block, where he was joined by another masked man with a shotgun, the prisoners were then put in the shadow near the bank building and held under guard. Defendant then went to the telephone exchange, disabled it, and took in custody all of those there, forced them to go with him. By using one of the telephone men as a decoy, he captured a deputy sheriff and took him, with his car, near the bank and placed seven of these captives in the car where defendant's companion guarded them. Defendant then drove a car equipped with an acetylene torch, tank, hose, and material for steel cutting to the sidewalk abutting the bank, broke in the windows, and one of the two men then proceeded to hook up the acetylene torch equipment and cut into the safe. During the operations several persons came along. They were stopped by the man on the outside guarding the prisoners and were taken into custody, so that, by the time the operations were completed, about twenty persons were held captive, most of them in their cars outside the bank. These prisoners included two men driving bread deliveries and one man driving a milk delivery. One young man was pressed into service to aid in the work inside the bank and two others were for a time kept inside the bank. The work was finished and the defendant and the perpetrators then drove away. In November, following, defendant and his brother Joe Newton were apprehended at Chandler and there was found in their car a double-barreled shotgun, three pistols, bullet proof vests, an acetylene outfit with tank, hose, torch, and goggles. Joe Newton was delivered to Texas authorities, defendant claimed the acetylene outfit, and it, with the car, was turned over to him by the Chandler officers. Later, officers at Medford, seeing pictures of defendant and Joe Newton, had defendant arrested at Tulsa, November 27, 1932, where he had gone after being released at Chandler. The defense was alibi, defendant did not take the stand. The identification of defendant as a participant in the crime is conclusive. The information charges robbery and also sought to bring defendant under the habitual criminal act, section 1820, Okla. Stat. 1931, by alleging a prior conviction, sentence, and commitment in a federal court.

Technically, this case was closely tried, the record contains more than 2,500 pages, defendant's initial brief contains 246 pages. Some forty assignments of error are argued. These various assignments will not be discussed separately, but those deemed of sufficient importance will be referred to.

The first contention is that the information is insufficient to charge robbery. Citing Wear v. State, 30 Okl. Cr. 118, 235 P. 271; Ex parte Grant, 32 Okl. Cr. 217, 240 P. 759; Ward v. State, 34 Okl. Cr. 296, 246 P. 664; Wissinger v. State, 39 Okl. Cr. 324, 264 P. 631. Along with the allegations of time, place, and various details, the information alleges in substance that defendant, with a certain deadly weapon, a loaded pistol, which he then and there pointed at and threatened to kill one Ed Heiland and thereby put said Heiland in fear of immediate death, that said Heiland was then and there the custodian of and guarding the banking house of the First National Bank at Medford and had the same under his care and possession. That said banking house was a place of business, attended during banking hours of each secular day by its cashier and other officers and employees, and that defendant, by use of the force and fear set out, did unlawfully, forcibly, and against the will of said Heiland take from the said banking house and said Heiland said moneys then and there in his possession and under his care as custodian and guard with the intent, etc. It is argued this is insufficient in not alleging the money was taken from a person who attended the bank at the time of the taking and does not allege the money was taken from the person and immediate presence of Heiland. Reliance is mainly on the case of Ward v. State, supra. The robbery in that case was of a person. It was alleged one person was put in fear, the property taken from another, and belonged to a third person. It was so worded that even the court could not be certain what was intended, and it was held the information was too indefinite and uncertain to apprise the accused of the offense sought to be charged.

Defendant's brief refers to the acts shown by the evidence as a "burglary." A burglary is defined by section 1927, Okla. Stat. 1931, as a breaking and entering any building (referring to building in its broadest sense) with intent to commit a crime therein. Larceny is defined by section 2253. Robbery is defined by section 2542, Okla. Stat. 1931. The robbery of a building or banking institution in addition to the robbery of a person is made a crime by section 2543, which is: "2543. That any person or persons who, with the use of firearms or any other dangerous weapons * * * robs or attempts to rob any place of business, residence or banking institution or any other place inhabited or attended by any person or persons at any time, either day or night, shall be guilty of a felony, and, upon conviction therefor, shall suffer punishment by death, or imprisonment, at hard labor, in the State Penitentiary, for a period of time of not less than five years, at the discretion of the Court, or the jury trying the same."

The information is rather full and definite in alleging the things done which constituted the offense. Certainly it is sufficient, when considered in connection with subdivisions 6 and 7, § 2891. Okla. Stat. 1931, which provides that an information is sufficient where the act or omission constituting the offense is clearly and distinctly set forth in ordinary and concise language with such certainty as to enable a person of common understanding to know what is intended and to enable the court to pronounce judgment according to the right of the case. This section must be construed in connection with the harmless error statute, section 3206. It cannot be doubted the essential allegations requisite to state the offense of robbery of a banking institution with firearms are charged either in the language of the statute or in words of similar import; that defendant and his counsel knew with certainty what was intended by the pleader; that the court was able to pronounce judgment according to the right of the case; that the offense was so identified that no other prosecution for the same acts would lie and this is all the law requires. Martin v. State, 35 Okl. Cr. 248, 250 P. 552; Plemons v. State (Okl. Cr. App.) 10 P.2d 285.

In attempting to bring the offense within the terms of the habitual...