Roulston v. State, A-12400

• Decision Date: 20 February 1957
• Docket Number: No. A-12400,A-12400
• Citation: 1957 OK CR 20,307 P.2d 861
• Parties: Zachary Taylor ROULSTON, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 861

307 P.2d 861

Zachary Taylor ROULSTON, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.

No. A-12400.

Criminal Court of Appeals of Oklahoma.

Feb. 20, 1957.

Syllabus by the Court

1. There is but one definition of robbery under the laws of the State. It is robbery as defined by Sec. 2542, O.S.1931, 21 Okla.St.Ann. § 791; Sec. 2552, Okla.St.Ann.1931, 21 § 800; and Sec. 2543, Okla.St.Ann.1931, 21 § 801. These are statutes of clarification and not definition, and the robbery referred to therein is robbery as defined by Sec. 2542.

2. The information herein, although reciting elements of conjoint robbery, sufficiently alleges the offenses of robbery with firearms, and refusal of the trial judge to require county attorney to elect does not constitute reversible error.

3. The general rule is that when a defendant is put upon trial for one offense he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone and the admission of evidence of other crimes, either prior or subsequent to the offense for which he is on trial is inadmissible.

4. Evidence of other crimes in order to be admissible must come within one of the well-recognized exceptions to the rule. That it tends to establish (1) Motive, (2) Intent, (3) The absence of mistake or accident, (4) A common scheme or plan embracing the commission of two or more crimes so related to each other that proof of oen tends to establish the other, and, (5) The identity of a person charged with the commission of the crime on trial.

Appeal from the District Court of Murray County; W. J. Monroe, Judge.

Zachary Taylor Roulston was convicted of the crime of robbery with firearms and sentenced to serve five years in the state penitentiary and appeals. Reversed.

Hendon & Hendon, Claude Hendon, Scott Hendon, Shawnee, Holmes Colbert, Sulphur, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

NIX, Judge.

The defendant was jointly charged in Murray County with Jimmy Buford Edgman with the offense of robbery with firearms. A severance was granted and defendant was tried, convicted and sentenced to serve a term of five years imprisonment in the state penitentiary and has appealed. The evidence on the part of the state that defendant, along with the co-defendant, Jimmy Buford Edgman and another man not identified and not known by the prosecuting witness, came to the home, which was a trailer house, of Norma Jean Hinchey during the afternoon of the 28th day of July, 1955, around 2 or 3 o'clock, where they purchased some gin and left the premises. Norma Jean Hinchey testified that about 9 o'clock p. m. the same day and after dark, while her husband was up town, defendant Roulston returned to her trailer house with two other men, one whom she only knew as a Mr. Brown and lived in Davis and the other one she did not know. The witness was vague as to whether the men came together or just happened at the same time. Mr. Brown purchased a pint of whisky and the two men left while defendant Roulston stayed. The witness stated 'he wanted a half-pint of whisky and when I went to get it and when I did he pulled a gun out of his shirt and told me to give him the money.' I said, 'There, it is--it was sitting right there. He took the box.' Mrs. Hinchey testified that the box had her name written on it and contained 'I believe it was $123.85, I'm not sure.' The defendant had witness turn off the lights on the outside of the trailer house and he left. That her husband returned home a few minutes after the robbery and she told him about it and he related the information to the sheriff. That she was later taken to Shawnee where she picked defendant out of a line-up as the man who robbed her.

Leonard Monger, Sheriff of Murray County, testified that he was informed of the robbery by the husband of Norma Jean Hinchey at approximately 9 o'clock. That he obtained the description of the car and the license number 'I got from that negro across the street--he gave me a description of it but she never did identify it.' That the description of the automobile and the license tag number 13-7333 was sent out on a broadcast shortly thereafter alerting the Highway Patrol and other officers in the area. The sheriff testified he had not seen Roulston previous to the time that he took Norma Jean Hinchey to Shawnee for the purpose of identification and that she positively identified the defendant as the man who robbed her.

Owen William Taylor testified on behalf of the State that he lived in Wynnewood and operated a Texaco Service Station on Highway 77. That the defendant Roulston did on the same night at approximately 9:30 walk up to his place and ask for change for some cigarettes which he gave him. The defendant turned around and asked where the restroom was and 'I told him where it was and went back outside and when I turned around he started for his shirt and said something to the effect that 'this is it'. I knew what he meant and I just opened the cash register.' That defendant Roulston took a gun out of his shirt and Taylor went to the cash register and gave the defendant the money in the amount of $73.70. That the defendant ordered him into the restroom, then after he went in, the defendant left.

Lawrence Cruz testified for the State that he ran a service station and cafe in Tecumseh, Oklahoma, and about 11 o'clock a car came through his driveway and upon asking them could he help, one of the men said, 'No, they were just passing through'. He noticed that the car had a 'busted' muffler and about 10 or 15 minutes later he looked out again, and there stood a man who waved at him and said, 'What's wrong with the restroom door and when I turned around, he had a gun on me. I don't know what words he was saying but I reached in my pocket and gave him my billfold which contained my money and he kept telling me to take it easy. He told me to go to the restroom and lay down. He began poking me with the gun and I went to the restroom and laid down. He closed the door. When he left, I got up and went outside and he was getting into the car which was parked on the south side of the building and they took off with no lights.' The testimonies of witnesses Lawrence Cruz and O. W. Taylor were given over strenuous objection of counsel for the defense which was overruled by the trial judge.

Charley Dawson, Highway Patrolman, testified that on the night of July 28, 1955, he got a general broadcast from the Durant Patrol Station of a 1950 Ford bearing a Seminole County license 13-7333, wanted by the sheriff's office in Sulphur and a short time later he was contacted by the patrol station in McAlester and advised there had been an armed robbery at a service station in Tecumseh. A short time later, there was another armed robbery reported in Shawnee. He was advised of a car of the same description--a 1950 model Black Ford was driving east from Shawnee on Highway 270. That he and patrolman with him stopped the car about a half mile north of Seminole and asked the occupants to get out. The occupants were Edgman and defendant Roulston. That they found a brown box with some money in it and also a .38 Colt pistol and some shells in the car. That after taking occupants to Seminole, they were searched and found $112.65 on defendant Roulston. Shortly thereafter, they were taken to Pottawatomie County jail at Shawnee. The box was identified by Norma Jean Hinchey as the one taken from her the same night.

With the testimony of these witnesses the State rested. Counsel for the defense then requested the Court to direct a verdict for the reason that the evidence, deductions and inferences to be drawn therefrom, were insufficient to sustain the allegations or show any crime was committed against the State of Oklahoma. The motion was overruled by the trial court and counsel for defendant then moved the Court to strike the evidence of witnesses Taylor and Cruz for the reason that their evidence did not tend to connect the defendant with the crime charged and did not prove intent, plan, scheme or res gestae and was wholly prejudicial to the rights of the defendant. This motion was overruled by the Court and exception saved by defendant.

At this time the defense called witness Z. T. Roulston, father of the defendant, who testified in substance that he had seen the defendant in the vicinity of Vemoosa where he was working on his automobile with a man named Charley Hailey, about 4 o'clock in the afternoon of July 28, 1955. That he had been instructed by defendant Roulston the day before to bring him a hundred dollars on the morning of July 28, 1955, which he delivered to defendant Roulston at his son-in-law's house at Vemoosa which is about 10 miles from Konawa. Testimony of witness Z. T. Roulston was evidently for the purpose of establishing an alibi and to show that Roulston could not have been in Murray County at the time of the alleged robbery.

Emmett Veitenheimer was called as a witness for the defense and testified that he was a resident of Shawnee, a man of family and employed at Tinker Field for Ball Construction Company. That he went to the town of Maud, Oklahoma, about dusky dark or around 8:00 or 8:15 on the evening of July 28, 1955, where he saw defendant Roulston on the street and Roulston waved at him and the witness picked up Roulston and was advised by him that he was going to Oklahoma City. Witness told the defendant that he was going to Shawnee and he could ride with him that far. That they proceeded to the town of Shawnee where the defendant was let out at the intersection of Highways 18 and 270. That the defendant left the witness' car at approximately 9 or 9:15 p. m. and that they were together about an hour and ten minutes. Veitenheimer testified that the defendant was not drinking then and he did not see any weapons upon the defendant. That he had known the defendant for a good number of...