Patterson v. State

• Decision Date: 15 March 1944
• Docket Number: A-10260.
• Parties: PATTERSON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

147 P.2d 179

78 Okla.Crim. 244

PATTERSON v. STATE.

No. A-10260.

Court of Criminal Appeals of Oklahoma

March 15, 1944

Syllabus by the Court.

1. Robbery is defined by Oklahoma Statutes (Tit. 21 O.S.A. 1941 § 791), as follows: "Robbery is a 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."

2. Tit 21 O.S.A. 1941 § 800 defines conjoint robbery, as follows "Whenever two or more persons conjointly commit a robbery or where the whole number of persons conjointly commits a robbery and persons present and aiding such robbery amount to two or more, each and either of such persons is punishable by imprisonment in the penitentiary for not less than five years nor more than fifty years." This statute does not supersede or repeal the robbery statute defining robbery, above quoted, but is a statute of classification and not definition.

3. Conjoint robbery is where the act is committed by two or more persons, and is an included offense where one is charged with the crime of robbery.

4. One may be convicted upon circumstantial evidence the same as by direct and positive testimony where the evidence justifies it under the law.

5. Where one is convicted of conjoint robbery under proper instructions of the court and the jury so finds, the fact that the judgment and sentence recites "robbery with firearms" does not make the judgment void, where the sentence given was within the prescribed limits of the punishment provided for conjoint robbery.

6. Record examined and found that there was no fatal variance between the allegations of the information, the verdict of the jury, and the judgment and sentence.

Appeal from District Court, Beckham County; T. R. Wise, Judge.

Glen Patterson was convicted of the crime of robbery, and he appeals.

Affirmed.

Robert Burns and Mathers & Mathers, all of Oklahoma City, for plaintiff in error.

Randell S. Cobb, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Jim Ted Robinson, Co. Atty., of Sayre, for defendant in error.

BAREFOOT Judge.

Defendant, Glen Patterson, was charged in the District Court of Beckham County with the crime of robbery, was tried, convicted and sentenced to serve a term of eight years in the penitentiary, and has appealed.

The information filed in this case charged the defendant and his co-defendant, Charley Patterson, with the crime of robbery in the following language:

"That one Charley Patterson and Glen Patterson late of the county aforesaid, on or about the 8th day of August, 1941, in the county of Beckham, state of Oklahoma, did then and there unlawfully, knowingly, wilfully, wrongfully and feloniously make an assault in and upon one Melvin Jones with a certain weapon, to-wit: a revolver, then and there and thereby putting the said Melvin Jones in fear of an immediate and unlawful injury to his life and person by threatening to shoot the said Melvin Jones if he resisted and did then and there under and by means of the use of said force and putting in fear, tie the said

Melvin Jones and chloroform him, and did then and there unlawfully, wilfully, wrongfully and feloniously, against the will of him, the said Melvin Jones, take, steal and carry away from the custody and possession of the said Melvin Jones the sum of eleven dollars in lawful United States currency which was the property of the Story Hotel and did further take, steal and carry away seven pieces of luggage containing valuable jewelry of the value in excess of $10,000, being owned by the Samual Gordon Jewelry Company, the same being under the personal custody of Mr. George Sutter, who had checked said luggage in at the Story Hotel and left the same in the care, custody and possession of the said Melvin Jones and that the said Charley Patterson and Glen Patterson did take the above personal property with the unlawful, wrongful and felonious intent then and there on the part of them, the said Charley Patterson and Glen Patterson, to rob and deprive the said lawful owners of the said property and to convert the same to their own use and benefit," etc.

A severance was demanded and defendant was separately tried, and was convicted, as above stated.

Counsel who briefed this case in behalf of the defendant did not participate in the trial thereof.

For a reversal of the case, it is contended:

"First, the court erred in overruling the request of the defendant to advise the jury to return a verdict of not guilty in this case because the evidence wholly failed to establish the crime of robbery, as charged in the information.

Second: There is a vital variance between the evidence and the allegations contained in the information, the verdict of the jury and the judgment and sentence of the court."

These contentions may be considered together.

It first becomes necessary to make a brief statement of the facts. The defendant was the son of his co-defendant, Charley Patterson. Both were residents of Oklahoma City, Oklahoma County, Oklahoma. The only evidence was that presented by the State. The defendant did not testify, and did not introduce any evidence.

George Sutter, a resident of Anadarko, Caddo County, Oklahoma, was a jewelry salesman for the Samuel Gordon Jewelry Company, a wholesale jewelry concern. He went to Elk City in Beckham County, on August 7, 1941, and stayed at the Story Hotel, in that City. He carried with him seven cases containing samples of jewelry, diamonds, watches, etc. Five of the cases were steel with Yale locks, while two of them were leather cases, with leather straps around them, and Yale locks on the buckles. These cases were checked to Melvin Jones, the night clerk of the Story Hotel, and were placed by him behind the desk of the clerk, and in behind a telephone switchboard, under the stairway. When Mr. Sutter retired for the night, around eleven or eleven thirty, these cases were in their proper place. He was awakened during the night, and went into the lobby of the hotel, and there was much excitement and he looked for the cases, and all of them were gone. The next day he saw and identified his cases. They were at the police station in Elk City, in a black car that had fender wells, four of the cases in the back seat and three in the tonneau. He identified each of the bags and testified they were taken without his knowledge or consent, and that the value of the property in the cases was in excess of ten thousand dollars. None of the cases had been opened. Mr. Sutter identified the defendant as being one of the two parties whom the officers had arrested and who was present at the police station in Elk City at the time he identified his cases.

Mack Robinson testified for the State. He was a member of the police department at Elk City. He was on the night shift, and worked from six o'clock in the evening until six in the morning. He testified that just after midnight on the morning of August 8, 1941, he was at the Rock Island Cafe, on Main Street. That about three a.m. he came out of the Cafe, and "started north and I saw two men come from the Story Hotel and get into a car and went north." He went to the front of the Story Hotel and attempted to go in, and the door was locked. He went to a telephone and called the Hotel, but got no response. He finally got the sister of the owner and manager of the Hotel, Mr. Ed Story, and he came and opened the front door. Soon after the door was opened a number of persons came in, and upon investigation the night clerk, Melvin Jones, was found in the rest room, where he was bound and gagged, and tied to the stool. His feet were tied together and tied to the stool, his hands were tied behind him, and his face and mouth were taped with four-inch adhesive tape. After his release he was unable to talk for some time, and prior to this trial he had died, but not by reason of any injury he received on the night of August 7th. This witness could not identify the defendant as being one of the parties whom he saw leave the hotel, for the reason that he was not close enough to him. He described the car as being a black car with fender wells, and that he saw the first two numbers of the tag--1-4--. He said "the exhaust was altogether different from what a car of that type would be. It sounded to me like a part of the muffler was busted or the exhaust was loose at the muffler." He examined the car at the police station the following day, and the one in which the defendant and his co-defendant were at the time of their arrest, and stated that it was the same car he saw back out from the Story Hotel the night before, and go north.

Mr. Ed Story testified to being the owner and manager of the Story Hotel. He described the building and testified to seeing Mr. Sutter when he went through the hotel to go to his room. Also to getting up at night and opening the door and of the officers finding the night clerk, Melvin Jones, bound, as above described. He testified to other details with reference to checking baggage, etc., which it is unnecessary to relate.

Mr. O C. Thornton testified that he owned a wholesale gasoline station in Elk City on the 7th and 8th of August, 1941. He recalled being at his place of business after midnight on August 7th. He testified that he saw "a black, '38 Buick sedan came from the south to my station, came right up that street and went out on 66." He was standing out beside the gasoline pump at the time. He described the car as being a black sedan and that it had well fenders and a trailer hitch on the back. He also testified that there was a drain ditch near his station and this car drove through the mud at the time it passed. There were two men in the car, but he could not identify the defendant as being one of...