Robinson v. State
| Decision Date | 22 February 1913 |
| Citation | 130 P. 121,8 Okla.Crim. 667,1913 OK CR 38 |
| Parties | ROBINSON v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
In a prosecution for conjoint robbery, the evidence is held sufficient to support the verdict and judgment and that no reversible error was committed on the trial.
Where the statute states the elements of a crime, it is generally sufficient, either in an indictment or information, to charge such crime in the language of the statute.
The refusal of a continuance in a criminal case, applied for on grounds not enumerated in the statute, is a matter within the discretion of the trial court; and nothing but an abuse of this discretion will warrant the appellate court in interfering with the judgment.
In a prosecution for conjoint robbery, a witness for the state was permitted to testify that immediately after the alleged robbery the victim complained to him that he had been robbed by the defendant, without testifying as to the particulars of his statement.
Additional Syllabus by Editorial Staff.
In a prosecution for robbery, committed between 1 and 3 o'clock, a question to a witness as to the condition of the victim of the robbery, as to being drunk or sober, when he returned to his place "along towards dark," is not competent.
When objections to a question to a witness are sustained, if it is intended to reserve the question as to the competency of the testimony for review, an offer of what the testimony would have been must be made.
The exclusion of impeaching testimony as to statements of a witness was proper, where no foundation was laid therefor by asking the witness as to the statements.
An instruction that, if the arrest and transportation of defendant was without authority, he had a right to escape and that circumstance should not be taken against him, was properly refused, where defendant's explanation of the reason for his attempt to escape was his dislike for the officer who had arrested him.
The refusal to permit defendant's counsel to interview an imprisoned witness, except in the sheriff's presence, is not ground for reversal of a conviction.
The contention that there was a fatal variance between the information, alleging that the robbery was committed by defendant and a person unknown, and the evidence is not sustained, where the complaining witness referred to the third party as the "stranger" throughout the testimony, and no evidence is adduced that his name was known at the time of filing the information.
Appeal from District Court, Muskogee County; R. C. Allen, Judge.
Pat Robinson was convicted of robbery, and appeals. Affirmed.
A witness cannot be impeached by proving a statement different from the one sworn to, unless he has been examined as to his having made such statement.
The plaintiff in error, Pat Robinson, hereinafter referred to as the defendant, was, by information, charged with the crime of conjoint robbery, committed upon Roland Wallace, in Muskogee county, on the 24th day of November, 1910. The information was filed in the district court of Muskogee county on the 24th day of April, 1911. May 13th the defendant filed a demurrer to the information, which was overruled. Thereupon the defendant filed an application for continuance, which was overruled, and the case was called for trial, and on the same day the jury returned a verdict of guilty and assessed his punishment at five years in the state prison. Motion for new trial was duly filed, and on May 23d, said motion was overruled, and judgment and sentence was rendered and entered in accordance with the verdict. To reverse the judgment, an appeal by case-made was perfected.
A brief statement of the testimony is as follows:
Roland Wallace testified that he first met the defendant at Robinson's meat market, in Briartown, on the evening of November 23d, and while there he had his money, three $10 bills and two $5 bills in his hand, in the presence of the defendant; and the next day about 9 o'clock, while he was at work picking cotton on Mr. Beshears' farm, about one mile from Briartown, Porter Starr, the defendant, and a stranger approached him in the field and demanded some whisky, which they claimed he had taken. Upon his denying it the defendant said: "You have got to come and go with us and straighten this up; we have got to have our whisky." Wallace went to Briartown with these parties. Arriving there they were informed that Finis Kaysinger, the man that said that Wallace had taken the whisky, had gone out into the country. The defendant said that they would follow him in Henry Starr's wagon. They all got into the wagon and drove out about a mile and a half to a point near the Briartown cemetery; here Wallace said he would go no further and got out of the wagon, also the defendant and the stranger; and they insisted that Wallace take a drink of whisky, and when Wallace turned the bottle up to take his drink the defendant and the stranger, with open knives held against his side, demanded that he either pay them or dig up the whisky. Wallace told them he did not have the whisky, and they told him to throw down his pocketbook. They took the money, and the defendant told Wallace "to get to hell out of there"; that he could feel the points of the knives when he threw down the purse; that it contained $40 in greenbacks and some silver; that this money was taken by force; that he returned to Briartown and complained of the robbery.
E. V. Beshears testified: That he lived about a mile southeast of Briartown. Roland Wallace was working for him November 24th. About 9 o'clock Pat Robinson and two other fellows came there, and he heard the defendant say: "Come on; you have got the grip of whisky, and must go and fix it up." That Wallace said something about not wanting to go, and then they all went off together.
H. M. Pickering testified he was a brother-in-law of Beshears, and was picking cotton for him that day. His testimony as to what occurred in the field is substantially the same as Mr. Beshears.
Sam Robinson testified: That he had a store at Briartown. Saw Wallace have three $10 bills in his hand. That the defendant and a stranger were present in his store at the time. That about 3 o'clock in the afternoon on the day on which the robbery occurred Wallace returned and complained of having been robbed by the defendant. That they left his store about 10 o'clock that morning.
Oscar Goodwin testified that he saw Roland Wallace in Briartown on the night of November 23d; that he had a roll of money with a $10 bill on the outside, in the store there, and the defendant was present at the time.
Finis Kaysinger, as a witness, denied that he ever told the defendant or his accomplice that Roland Wallace had taken their whisky.
The testimony in behalf of the defendant is substantially as follows:
Henry Starr testified: That he met Wallace and the defendant in Briartown, and they were having a dispute about some whisky that Wallace claimed that one Ike Stanford had taken, and they started out in his wagon to see him. They met Stanford, and took two pints of whisky away from him. On their way back they stopped by the roadside and sat down and they all commenced to play cards. After playing a while, Wallace said that he would not play them all; that he would play any one of them single-handed, and Ed Ward was chosen to play him. That after a while the game broke up in a row. That Wallace had lost his money. That the money was not taken from him by force, or by the drawing of knives by the defendant and Ward.
The defendant, testifying on his own behalf, stated: That he had lost some whisky, and Wallace had been accused of taking it, and that they started with him to find Ike Stanford to settle the dispute; Wallace having laid it on him. That they stopped by the roadside and began to play cards. They were all drinking. Wallace said that he would not play them all, so Ed Ward was chosen to play him. The game broke up in a row; Wallace claiming that he was cheated, and that Ward had taken his money. He denied robbing Wallace, or that he had a knife or gun at the time. On cross-examination he admitted that he was arrested in Quinton about ten days later, and that he escaped from the officer by jumping out of a car window, while the train was running; also that he had been convicted of burglary and served a term of two years.
The record shows that Porter Starr, called as a witness on behalf of the defendant, having been first duly sworn and called as a witness, refused to testify.
Wallace Wilkinson, of McAlester, for plaintiff in error.
Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Jos. L. Hull, Sp. Asst. Atty. Gen., for the State.
DOYLE, J. (after stating the facts as above).
It is contended, first: "That the court erred in overruling the defendant's demurrer." The learned counsel, in his brief, says: "The objection to the information is first, that it fails to state how, or by what means or force, the plaintiff in error put the said Roland Wallace in fear, or whether or not the said Roland Wallace was in fear at the time of the seizing of his money; and, second, that the money was not described." The objection is not well taken. The information charges that the defendant, acting conjointly with a person unknown, did feloniously, by use of force, and by putting in fear, without the consent and against the will, seize and take from the person and immediate possession of the said Roland Wallace $41, good and lawful money of the United States. The...
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