Randall v. State

• Decision Date: 20 February 1926
• Docket Number: A-5236.
• Citation: 243 P. 983,33 Okla.Crim. 262
• Parties: RANDALL v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

243 P. 983

33 Okla.Crim. 262

RANDALL v. STATE.

No. A-5236.

Court of Criminal Appeals of Oklahoma

February 20, 1926

Syllabus by the Court.

To constitute "robbery" the taking must be either directly from the person or immediate presence and against the will of the party robbed, and must be by force or a previous putting in fear. It is the previous violence or intimidation that distinguishes "robbery" from "larceny."

Robbery committed "with the use of any firearms or any other dangerous weapons" includes robbery as defined by Penal Code, § 1784; C. S. 1921, and where the evidence on the part of the state clearly establishes all the essential elements of robbery so defined, the defendant may be convicted of the included offense.

Under Code of Crim. Proc. § 2820; C. S. 1921, this court, in the furtherance of justice, has the power to modify any judgment appealed from by reducing the sentence.

In a prosecution for robbery, evidence examined, and held sufficient to support the verdict of conviction.

Appeal from District Court, Oklahoma County; William H. Zwick Judge.

Joe Randall was convicted of robbery, and he appeals. Modified and affirmed.

Deupree & Deupree and A. J. Taft, all of Oklahoma City, for plaintiff in error.

George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.

DOYLE J.

Plaintiff in error, Joe Randall, was tried on a plea of not guilty to an indictment of which the charging part is as follows "That is to say, that the said defendant, in the county aforesaid then and there being, did then and there willfully unlawfully, wrongfully and feloniously, assault and strike one Joe Pack upon the head with a certain piece of steel approximately ten inches long and weighing approximately one pound, which said steel was then and there had and held in the hands of him, the said defendant, with such force as to overcome all resistance on the part of the said Joe Pack, and by means and use of such force, as aforesaid, and while the said Joe Pack was overcome by means of such force, he, the said defendant, did willfully, unlawfully, wrongfully and feloniously take, steal and carry away from the person of the said Joe Pack approximately $40 good and lawful money of the United States of America, the personal property of the said Joe Pack, with the unlawful, wrongful and felonious intent then and there on the part of said defendant to appropriate said property to his own use and benefit, and to deprive permanently said rightful owner thereof, contrary to," etc.

The trial court instructed the jury, in part, as follows:

"7. Under the law any person who with the use of any firearm or other dangerous weapon attempts to rob or robs any person, or who robs or attempts to rob any place of business attended by any person, either in the day or nighttime, shall be deemed guilty of a felony, and upon conviction thereof shall suffer death or imprisonment at hard labor in the state penitentiary for a time of not less than 25 years, at the discretion of the jury." Exception allowed. William H Zwick, Judge.

The jury returned their verdict finding "the defendant guilty as charged in the indictment and fixing his punishment at 25 years in the state penitentiary." Motions for a new trial and in arrest of judgment were overruled, and on March 6, 1924, the court pronounced judgment and sentence in accordance with the verdict.

In support of the contention for defendant that the judgment should be reversed and a new trial ordered, numerous errors are assigned which will be taken up in the order presented in his brief.

It is first contended that the court erred in overruling defendant's motion in arrest of judgment, which was based on the ground that the indictment did not state facts sufficient to constitute a public offense, and that the indictment did not sufficiently inform him of the crime of which he is accused, for the reason that the charge was made under chapter 85, Session Laws of 1923, and not under section 1784, C. S. 1921, which defines "robbery" 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."

Chapter 85, Session Laws 1923, § 1, reads:

"That any person or persons, who, with the use of any firearms, or any other dangerous weapons, attempts to rob or robs any person or persons, or who robs or attempts to rob any place of business, residence, bank, or other place, inhabited or attended by any person or persons at any time, either day or night, shall be deemed guilty of a felony, and upon conviction therefor shall suffer death, or imprisonment at hard labor in the state penitentiary for a time of not less than

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