Simpson v. State
| Decision Date | 01 March 1928 |
| Docket Number | A-6656. |
| Citation | 266 P. 783,40 Okla.Crim. 58 |
| Parties | SIMPSON v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Rehearing Denied May 5, 1928.
Syllabus by the Court.
There is but one definition of robbery under the laws of this state. That is robbery as defined by section 1784, Comp. St 1921. Section 1793, Comp. St. 1921, and chapter 85, of Session Laws 1923, and chapter 44, Session Laws 1925, are statutes of classification and not definition, and the robbery referred to therein is robbery as defined by said section 1784.
The testimony of a witness as to the identity of a person is in effect a matter of opinion. It is competent for a witness to testify that he saw defendant after his arrest and recognized him as the one whom he saw commit the offense, although the witness may not be able to state any peculiarity or characteristic on which his identification is based.
The record examined, and held that the evidence sufficiently sustains the verdict and judgment.
Where two or more defendants are charged in the same information and are tried separately, a codefendant is a competent witness only with his own consent. He cannot be compelled to testify so long as the action is pending against him, and any comment by counsel for the state on the failure of defendant to call his codefendant not on trial to testify is not legitimate argument. Unless the case is close on the facts and this misconduct may have influenced the verdict, it is not necessarily reversible error.
Appeal from District Court, Muskogee County; A. C. Brewster, Judge.
John Simpson was convicted of robbery with firearms, and he appeals. Modified and affirmed.
M. D Hartsell and T. H. Davidson, both of Muskogee, for plaintiff in error.
Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
The plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county on a charge of robbery with firearms, and was sentenced to serve a term of 30 years in the state penitentiary.
This is a second appeal; a former conviction having been reversed by this court. Williams et al. v. State (Okl. Cr. App.) 249 P. 433. After the reversal of the former conviction, a severance was had, and the defendant, John Simpson, was tried alone.
On December 20, 1924, about the hour of 9:30 p. m., two men appeared at the store of Robert Nesbitt, at which Nesbitt and a young woman named Rhoda Bowman were working, and, by pointing a pistol, made them hold up their hands. They then robbed the person of Nesbitt, and rifled the cash register. Defendants were arrested in Muskogee on January 6 following. The evidence is that one of the persons committing the robbery wore a peculiar pair of glasses with divided lenses; the top part colored, the lower part clear. At the time of the arrest defendant had in his pocket a pair of glasses answering the description of those worn by one of the robbers. Soon after the arrest Nesbitt and Rhoda Bowman identified defendants as the persons engaged in the robbery. There are some other corroborating circumstances. The defense was an alibi. The defendant testified, but the codefendant, Williams, did not take the stand.
It is contended that, since the robbery is charged to have been committed by two persons, the prosecution should have been under the conjoint robbery statute (section 1793, Comp. Stat. 1921). There is but one definition of robbery under the statutes of this state. That is robbery as defined by section 1784, Comp. St. 1921. Conjoint robbery, as referred to in section 1793, Comp. Stat. 1921, is merely robbery as defined by section 1784, when committed by two or more persons. The latter section is a statute of classification and not of definition. In 1923 the Legislature enacted chapter 85, Session Laws 1923, further classifying robbery, and providing an enlarged punishment for robbery when committed by any person or persons by the use of firearms or other dangerous weapons. It applies whether the robbery is by one person or two or more conjointly. This was the law in force at the time the offense here charged was committed. Since that time this statute has been further amended by chapter 44, Session Laws 1925. Richards v. State, 22 Okl. Cr. 199, 210 P. 295; Randall v. State (Okl. Cr. App.) 243 P. 983; Wells v. State (Okl. Cr. App.) 245 P. 1007.
The instructions here properly define robbery and submit the punishment for robbery by firearms, the class of robbery charged and shown by the evidence.
It is argued at length that the evidence is insufficient to support the conviction. Counsel admits the well-settled rule of this court that, where there is evidence, although conflicting, which, if believed, is sufficient to sustain the judgment, the court will not invade the province of the jury and weigh the evidence, but will leave to the jury the discretion of determining the weight and sufficiency of the evidence and the credibility of the witnesses. He does not assert that there is not sufficient evidence of guilt, which, if believed, sustains the conviction, but that it comes to the court under such condition that the case presents an exception to the general rule; that, in view of the sharp conflict in the evidence and the contradictions in the testimony of the state's principal witnesses, Nesbitt and Bowman, this court should weigh the evidence and determine the credibility of the witnesses. The proof of guilt must stand or fall on the evidence of Nesbitt and Miss Bowman, they were the only persons present at the scene of the crime other than the persons who committed the robbery. Both of these witnesses testify positively that the defendant and Roy Williams are the persons who committed the offense. They were also the principal witnesses at the former trial, at which time they were cross-examined at great length, particularly on the matter of identification, the examination going minutely into the appearance of the persons committing the robbery, the manner in which they were dressed, and the reason of the witnesses for their identification.
There are conflicts in the testimony of these witnesses on this trial and the former trial in the matter of details, which are stressed and pursued here at length in a most searching cross-examination, and it is urged that these contradictions so weaken the testimony of these witnesses that the court should not permit the conviction to stand. There is no conflict in the testimony as to the ultimate fact. These witnesses in each instance testify that the defendant and Roy Williams were the persons who committed the robbery. The identity of a person is in large measure a matter of opinion. It may be based on well-defined characteristics, but...
To continue reading
Request your trial