Potter v. State, A--18098

• Decision Date: 19 June 1973
• Docket Number: No. A--18098,A--18098
• Citation: 511 P.2d 1120
• Parties: Ernest Lee POTTER and Charles William Cartwright, Appellants, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1120

511 P.2d 1120

Ernest Lee POTTER and Charles William Cartwright, Appellants, v. STATE of Oklahoma, Appellee.

No. A--18098.

Court of Criminal Appeals of Oklahoma.

June 19, 1973.

An appeal from the District Court of Tulsa County; C. R. Board, judge.

Earnest Lee Potter and Charles William Cartwright were convicted by a jury for the crime of Robbery by Force and Fear, their punishment was assessed at thirty-five years imprisonment, and they appeal. Judgment and sentence modified from thirty years imprisonment to tweny years imprisonment, and as modified, judgment and sentence is affirmed.

Paul D. Brunton, Public Defender, Tulsa, for appellants.

Larry Derryberry, Atty. Gen., Fred H. Anderson, Asst. Atty. Gen., Linda Frye, Legal Intern, for appellee.

OPINION

BRETT, Judge:

Appellants, Ernest Lee Potter and Charles William Cartwright, hereinafter referred to as defendants, were convicted in the District Court of Tulsa County, Case No. CRF 72--517, of Robbery by Force and Fear, and were sentenced to thirty years imprisonment in the State Penitentiary. Judgment and sentence was imposed on October 25, 1971, and this appeal perfected therefrom.

On appeal defendants contend that the trial court erred in overruling defendants' demurrer to the district court information in that more than one offense was charged there; that the trial court erred in overruling defendants' demurrer and motion for directed verdict at the close of the state's evidence in chief, based on state's failure to prove the corpus delicti, absent alleged incriminatory statements of the defendants; that the trial court erred in refusing Defendant Potter's requested instruction concerning the defense of abandonment; that the court erred in overruling defendants' numerous motions for mistrial, based on prejudicial statements made by the prosecutor during the course of the trial; that the court erred in submitting an instruction tending to show flight by the defendants shortly after the commission of the crime alleged against them, and that the trial court erred in overruling defendants' motion to suppress alleged incriminatory statements.

It was charged by information that on February 6, 1972, defendants did:

'wilfully and wrongfully, while acting in concert each with the other, rob one BALLZORA MAY FAST by wrongfully taking and carrying away certain money and personal property of value belonging to and in the possession of BALLZORA MAY FAST, and in her immediate presence, without her consent and against her will, said robbery being accomplished by said defendants then and there committing an assault and battery on said BALLZORA MAY FAST, by beating and striking the said BALLZORA MAY FAST with a heavy cane or crowbar and did then and there put the said BALLZORA MAY FAST in fear of immediate and unlawful injury to her person and overcame all her resistance and while so intimidating her did then and there wrongfully take and obtain from her the money and property aforesaid, . . .'

Robbery, is defined in Title 21 O.S.1971, § 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.'

The information did contain a surplusage of words; however, considered in its entirety the information clearly specified the offense of Robbery by Force and Fear, under the foregoing statute.

In Payne v. State, Okl.Cr., 276 P.2d 784 (1954), this Court stated:

'An indictment or information is not duplicitous when it charges only one offense or transaction but alleges different acts which were committed by defendant in committing the offense charged.' See also Hill v. State, Okl.Cr., 266 P.2d 979 (1954); Huckleberry v. State, 64 Okl.Cr. 396, 81 P.2d 493 (1938), and Bowman v. State, 83 Okl.Cr. 199, 167 P.2d 663 (1946).

The reference to 'assault and battery' in the charge merely specified the means or manner by which the force and fear were occomplished. Therefore, we are of the opinion that the trial court did not commit error in overruling defendants' demurrer to the information as being duplicitous.

The facts of the case indicate that on February 6, 1972, at approximately 5:00 P.M., Judy Flynn, the adult granddaughter of Ballzora May Fast, was at the residence of Mrs. Fast. She had been straightening up her grandmother's house and left about 6:00 P.M. After receiving a call from her grandmother that she needed help, she returned to her grandmother's house about 7:35 P.M., accompanied by her mother and sister. She testified that when she arrived the second time the door was open and her grandmother was sitting in her reclining chair with her face cut and bleeding; and that her grandmother's face had started to swell. She further testified that her grandmother's cane was on the floor at the foot of her chair, that a crowbar was laying four or five feet from her chair, and that there was blood all over everything. The grandmother couldn't say anything understandable; but Miss Flynn testified that she said to her grandmother, 'somebody beat you up, grandma, how did they get in . . . she (Mrs. Fast) told that she let him in.' Miss Flynn also identified certain photographs as depicting her grandmother's house, inside and out, as well as her grandmother's cane.

Miss Flynn related also that upon her return to her grandmother's house an old radio she had observed earlier was missing; and a cigar box that contained her grandmother's 'blood-pressure pills' was missing. None of the missing items were recovered. The radio was one Mrs. Fast was holding as security for a Ten Dollar loan to someone. This witness also testified that her grandmother had rented two rooms in her house to the two defendants and Roger Cartwright, a brother to defendant Charles Cartwright.

Zora Tyner, the sister of Judy Flynn, testified concerning the condition of the house, which coincided with that of Judy Flynn. However, when she testified concerning the incoherency of her grandmother's words, she related that 'she always said them or they.'

All of this testimony is related to defendants' second proposition, which asserts the state failed to prove the corpus delicti. Defendants cite Raybourn v. State, Okl.Cr., 339 P.2d 539 (1959), a forgery case, in support of their proposition. In that case, Raybourn asserted that the corpus delicti was not proved; and in discussing the question of corpus delicti this Court stated: '(D)irect and positive evidence of the corpus delicti is not indispensable. Like any other fact, the subject of judicial investigation, it may be proved by circumstantial evidence.' The Court continued its discussion, stating 'that the corpus delicti need not be established beyond a reasonable doubt, but it is sufficient if the evidence thereon be substantial. This may be done without connecting the defendant with the commission of the crime. The corpus delicti being established by proof other than the defendant's confession, the confession then becomes admissible for the purpose of connecting the defendant with its commission.' 339 P.2d at page 546.

Thereafter, in Raybourn v. State, supra, the Court entered into a discussion of the evidence produced in that case showing that a forgery had in fact been accomplished. At page 547, the Court states, 'thus, it appears the circumstances were sufficient to establish the commission of the crime of forgery by someone. Such being the case, the defendant's confession, if voluntary, became admissible to identify and connect the defendant with the crime.'

Likewise in the instant case, the facts were clearly established that Mrs. Fast had indeed been beaten with sufficient force to instill fear in her; the granddaughter established that the assault occurred after she straightened...