Rasberry v. State

• Decision Date: 09 September 1909
• Citation: 103 P. 865,4 Okla.Crim. 613,1909 OK CR 175
• Parties: RASBERRY v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

103 P. 865

4 Okla.Crim. 613, 1909 OK CR 175

RASBERRY v. STATE.

Court of Criminal Appeals of Oklahoma

September 9, 1909

Syllabus by the Court.

(a) A judge pro tempore may fix the time within which a case-made may be prepared and served; but after he has fixed such time he cannot extend the time for preparing and serving such case-made.

(b) If a judge pro tempore has tried a case, and has fixed the time within which a case-made may be prepared and served, and it is desired to secure an extension of time to prepare and serve such case-made, such extension of time may be granted by the regular judge of the district in which the case was tried, or it may be granted by any judge who may be presiding in said court; but, if granted by the judge presiding in said court, the record must show that court was actually in session at the time that the extension was granted by the court.

(c) If the time fixed has expired within which a case-made may be prepared and served, no judge has power to extend such time.

(d) If it appears in the record that a judge pro tempore has fixed the time within which a case-made may be prepared and served and that subsequently the judge pro tempore granted a further extension of time, nothing contained in the case-made filed after the expiration of the time fixed will be considered on appeal.

(e) Our statute provides for two methods of prosecuting an appeal viz.: Upon the transcript of the record, accompanied by a case-made; or upon transcript of the record alone. If the first method is pursued, and for any reason the case-made is fatally defective, the appeal will not be dismissed, but will be considered upon the transcript of the record alone.

(a) Every felonious act is necessarily a wrongful act. Therefore in an information or indictment for robbery, when it is alleged that the act was feloniously done, this in substance and effect charges that it was wrongfully done, and it is not necessary to go further and allege that such act was wrongful.

(b) It is not necessary to allege in an information or indictment conclusions of law, or any fact of the existence of which the courts take judicial notice.

(c) In an indictment for robbery, when it is alleged that the property was taken from the person robbed, it is not necessary to allege that such property was in the possession of such person.

(d) Repetition of substantially the same allegation in an indictment or information is bad practice, and is condemned by our statute; but it does not necessarily follow that such repetition will constitute reversible error.

(e) For an indictment for conjoint robbery, which is held to be sufficient, see opinion.

(a) It is not necessary for a verdict of guilty of conjoint robbery to state the degree of which the defendant is convicted; for there are no degrees in this offense, and but one punishment is prescribed therefor by the statute.

(a) If an instruction given is inaccurate, and the evidence in the case is not before the court, such inaccuracy in the instruction, unless fundamental, will not constitute reversible error, if from any testimony which could have been introduced such error could not deprive the defendant of some substantial right.

Under the common law the record proper was the indictment, the plea of the defendant, the verdict, and the sentence. Wilson's Rev. & Ann. St. 1903, §§ 5484, 5580, have enlarged this rule and make the instruction to the jury, as well as instructions requested by the defendant and refused, and a copy of the clerk's minutes of the trial, a part of the "record."

Appeal from District Court, Lincoln County; R. H. Gaylen, Judge, pro tem.

Cyrus Rasberry was convicted of robbery, and he appeals. Affirmed.

It is not necessary for a verdict of guilty of conjoint robbery to state the degree of which defendant is convicted, there being no degrees and but one punishment prescribed.

On the 11th day of February, 1908, the grand jury of Lincoln county returned into court an indictment for conjoint robbery against Cyrus Rasberry and others (hereinafter called defendants), which indictment is as follows:

"State of Oklahoma, County of Lincoln--ss.:

"State of Oklahoma, Plaintiff, v. Cyrus Rasberry, George Askins, and J. W. Lilly, Defendants.

"In the District Court of Lincoln County, Tenth Judicial District, Feb. Term, A. D. 1908.

"Indictment for Conjoint Robbery.

"The grand jurors of the state of Oklahoma, within and for the county of Lincoln, of the February term of the district court of the Tenth judicial district of the state of Oklahoma, in the year of our Lord one thousand nine hundred and eight, duly and legally chosen, selected, impaneled, sworn, and charged according to law, in the name and by the authority of the state of Oklahoma, upon their oaths present: That Cyrus Rasberry, George Askins, and J. W. Lilly, late of the county aforesaid, on the nineteenth day of January in the year of our Lord one thousand nine hundred and eight, in the county of Lincoln and state of Oklahoma aforesaid then and there being, did then and there willfully, unlawfully, and feloniously make an assault upon the person of one Natcho Deneff, and did then and there willfully, unlawfully, and feloniously, wrongfully, forcibly, and conjointly, against the will and consent of him, the said Natcho Deneff, and by means of force and fear of immediate and unlawful injury to the person of him, the said Natcho Deneff, said fear being brought about in the mind of him, the said Natcho Deneff, by said defendant, with force and violence, by striking the said Natcho Deneff on the head with a revolver, a deadly weapon, and threatening to shoot him, the said Natcho Deneff, with said revolver, if he resisted, thereby and by means of such force did then and there produce in the mind of him, the said Natcho Deneff, fear of immediate and great injury to the person of him, the said Natcho Deneff, sufficient to overcome the resistance of him, the said Natcho Deneff, and while he, the said Natcho Deneff, was under the influence of such fear, so produced as aforesaid, said defendants did feloniously take, steal, and carry away from the person of him, the said Natcho Deneff, the sum of one hundred dollars, lawful money of the United States, of the value of one hundred dollars, and one leather pocketbook, all the property of the said Natcho Deneff, with the felonious intent, then and there, of the said Cyrus Rasberry, George Askins, and J. W. Lilly, to convert the said one hundred dollars, lawful money of the United States, and the said leather pocketbook, to their own use, and to deprive the owner, the said Natcho Deneff, permanently thereof. This contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Oklahoma.

"Dated at Chandler, Lincoln county, state of Oklahoma, this 11th day of February, A. D. 1908. J. M. Gardner,

"Foreman of the Grand Jury.

"John J. Davis, County Attorney."

The defendant filed a motion to quash the indictment, which was by the court overruled, and the defendant reserved an exception. The defendant was placed upon trial, and was found guilty by the jury of conjoint robbery. A motion for new trial was made and overruled, and judgment of the court was pronounced and entered of record. The defendant, expressing a desire to appeal, was granted 90 days in which to make and serve a case-made. On the 28th day of May, 1908, an extension of 60 days, in addition to the 90 days heretofore granted to make and serve a case-made, was granted to the defendant by the judge pro tempore who presided at the trial; but as to whether or not the said judge pro tempore was then presiding over a legal term of the district court of Lincoln county the record is silent. The case-made was served on the county attorney on the 21st day of August, 1908. The case-made was signed and settled by Judge W. N. Maben, the regular judge of that district, on the 19th day of December, 1908, and was also duly signed and settled by Special Judge Pro Tempore R. H. Gaylen on the 25th day of February, 1909, and was filed in this court on the 12th day of March, 1909. The case is brought before us on petition in error.

Emery A. Foster, for appellant.

Charles West, Atty. Gen., and Charles L. Moore, Asst. Atty. Gen., for the State.

FURMAN, P.J. (after stating the facts as above).

First. On the 3d day of February, 1908, a motion for a new trial and a motion in arrest of judgment were overruled by the court, the defendant was duly sentenced, and upon application of the defendant 90 days was granted him in which to make and serve a case-made. Afterwards, on the 28th day of May, 1908, the said judge pro tempore granted an extension to the defendant of 60 days in which to make and serve a case-made, in addition to the 90 days previously granted. The Attorney General moves the court to dismiss the appeal upon the ground that the judge pro tempore was without power to grant this extension of time, and that the case-made was not served until after the expiration of the 90 days, originally granted, in which the case-made should be prepared and served.

The judge pro tempore did have power to make the original order granting 90 days in which to make and serve the case-made but did he have power to grant the extension of time in which this might be done? The Attorney General contends that he did not have such power, and that the extension could only have been granted by the regular judge of the district. Section 4742, Wilson's Rev. & Ann. St. 1903, upon the subject of extending the time within which the case-made may be prepared and served, is as follows: "The court or judge may, upon good cause shown, extend the time for making a case and the time in which...