State v. Hanna

• Decision Date: 19 September 1975
• Docket Number: No. O--75--303,O--75--303
• Citation: 540 P.2d 1190
• Parties: The STATE of Oklahoma, Appellant, v. Ernest Timothy HANNA, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1190

540 P.2d 1190

The STATE of Oklahoma, Appellant, v. Ernest Timothy HANNA, Appellee.

No. O--75--303.

Court of Criminal Appeals of Oklahoma.

Sept. 19, 1975.

Preston A. Trimble, Dist. Atty., Lynn C. Rogers, Asst. Dist. Atty., for appellant.

Robert A. Flagler, Norman, for appellee.

OPINION

PER CURIAM:

On March 20, 1975, Ernest Timothy Hanna, hereinafter referred to as defendant, was charged in the District Court, Cleveland County, Case No. CRF--74--386, for the offense of Murder in the First Degree, in violation of 21 O.S.Supp.1974, § 701.1. Thereafter, on April 14 and 15, 1975, a preliminary hearing was conducted and the defendant was bound over for trial by the examining magistrate. On May 9, 1975, the defendant filed a Motion to Quash the Information based on insufficiency of the evidence at the preliminary hearing. On May 21, 1975, the Honorable Elvin J. Brown, District Judge, Cleveland County, sustained the defendant's Motion to Quash the Information, without prejudice to prosecution for Murder in the Second Degree. Under the provisions of 22 O.S.1971, § 1053, the State has appealed.

Briefly stated, the evidence presented at the preliminary hearing revealed that there was reasonable cause to believe that the defendant, with a premeditated design, effected the death of one Mary Louise Wofford while engaged in committing the crime of armed robbery by means of strangulation and beating; that the defendant accomplished the armed robbery and murder with the use of an electric iron and electrical cord and heavy boots.

The pertinent part of 21 O.S.Supp.1974, § 701.1 reads as follows:

'Homicide, when perpetrated without authority of law and with a premeditated design to effect the death of the person killed, or of any other human being, is murder in the first degree in the following cases:

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'2. When perpetrated by one committing or attempting to commit rape, kidnapping for the purpose of extortion, arson in the first degree, armed robbery . . .'

Judge Brown ruled, in his Order to Quash the First Degree Murder Information, that armed robbery could not be accomplished with such items as an electric clothes iron and cord or boots (the items used in this case), but could only be accomplished with a weapon which is dangerous, per se, such as a gun or knife.

Although the State of Oklahoma does not have a statutory definition of 'armed robbery,' this Court has used the term 'armed robbery' synonymously with the offense of robbery with firearms or dangerous weapons (21 O.S.1971, § 801). See, Stanford v. State, Okl.Cr., 450 P.2d 234 (1969); Wilson v. State, Okl.Cr., 461 P.2d 980 (1969); Starr v. State, Okl.Cr., 478 P.2d 1003 (1970); and, Harris v. State, Okl.Cr., 523 P.2d 1140 (1974). Other jurisdictions have held that 'armed robbery' is robbing with a dangerous weapon. See, Williams v. Mayo, 126 Fla. 871, 172 So. 86 (1937) and Carter v. State, 27 Wis.2d 451, 134 N.W.2d 444 (1965). Also, robbery by striking or by beating, or by other violence of the person, is 'armed robbery.' See, State v. Boles, 148 W.Va. 752, 137 S.E.2d 240 (1964).

This Court has held that the dangerous weapon referred to in 21 O.S.1971, § 801, and in our statute prohibiting assault with a dangerous weapon does not have to be a dangerous weapon, per se, but the manner of use of the instrument may be the controlling factor in determining whether it is a 'dangerous weapon.' See, Smith v. State, 69 Okl.Cr. 17, 99 P.2d 527 (1940) (iron pipe); Tipler v. State, 78 Okl.Cr. 85, 143 P.2d 829 (1943) (a leather strap); Hay v. State, Okl.Cr., 447 P.2d 447 (1968) (a pair of shoes); Davis v. State, Okl.Cr., 451 P.2d 974 (1969) (a coke bottle and fist); Shirley v. State, Okl.Cr., 467 P.2d 517 (1970) (a tire tool); and, Quarrels v. State, Okl.Cr., 502 P.2d 1293 (1972) (a tire iron). Other jurisdictions also have followed this reasoning: a shod foot is a dangerous weapon within the meaning of the State of California's First Degree Robbery statute. See, People v. Wood, 192 Cal.App.2d 393, 13 Cal.Rptr. 339 (1961); a microphone cord in Bennett v. State, 237 Md. 212, 205...