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(Okla. Crim. Rep. ty attorney to amend the information to charge robbery in the first degree only. Held, further, that the preliminary hearing was sufficient to support the charge as amended.

[See 14 R. C. L. 192; 3 R. C. L. Supp. 193. See also note in 7 A.L.R. 1545.] Criminal law instructing on crime not supported by evidence.

3. Where one is charged with robbery in the first degree, the court committed no error in failing to instruct the jury, defining robbery in the second degree, when there was no evidence offered tending to show a lower degree of the offense.

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-, 212 Pac. 612.)

property, which, when procured, are delivered to the person making the assault, while the person assaulted is under continued fear and duress, this constitutes robbery under the circumstances outlined in the opinion.

[See 23 R. C. L. 1146, 1147; 3 R. C. L. Supp. 1344.]

-what constitutes.

5. The taking of something of value from another by means of force or personal fear is the gist of the offense of robbery. Whether the motives leading up to the robbery grew out of avarice, revenge, or other like motive, is immaterial, and the court committed no error in refusing to permit an extended examination touching such motives.

[See 23 R. C. L. 1139; 3 R. C. L. Supp. 1342.] Evidence

sufficiency.

6. The evidence as a whole, as outlined in the opinion, held sufficient to support the charge of robbery.

ERROR to the District Court for Bryan County (March, J.) to review a judgment convicting defendant of robbery in the first degree. Affirmed. The facts are stated in the opinion of the court.

Mr. Warren B. Phillips, for plaintiff in error:

The court erred in permitting the state to file an amended information charging the defendant with robbery in the first degree.

Rex v. Edwards, 5 Car. & P. 518, 1 Moody & R. 257; Slover v. Territory, 5 Okla. 506, 49 Pac. 1009; 22 Cyc. 436.

Defendant was entitled to an instruction of not guilty, because of a variance between the allegations of the information and the proof.

Rex v. Edwards, supra; Monagham v. State, 10 Okla. Crim. Rep. 89, 46 L.R.A. (N.S.) 1149, 134 Pac. 77; People v. Church, 116 Cal. 300, 48 Pac. 125; Slover v. Territory, 5 Okla. 506, 49 Pac. 1009; Tyson v. United States, 7 Okla. Crim. Rep. 433, 122 Pac. 733; Cochran v. State, 4 Okla. Crim. Rep. 379, 111 Pac. 974.

It was the duty of the court to give an instruction on robbery in the second degree, because it is the court's duty to instruct upon all phases of the case, regardless of whether the defendant requests it or not.

Rhea v. Territory, 3 Okla. Crim. Rep. 230, 105 Pac. 314; Monagham v. State, 10 Okla. Crim. Rep. 89, 46 L.R.A. (N.S.) 1149, 134 Pac. 77; Nelson v.

State, 11 Okla. Crim. Rep. 259, 145 Pac. 315; Cannon v. Territory, 1 Okla. Crim. Rep. 600, 99 Pac. 622.

Messrs. Hatchett & Ferguson, McPherren & Cochran, and J. A. Shirley also for plaintiff in error.

Messrs. George F. Short, Attorney General, and N. W. Gore, Assistant Attorney General for the State:

Defendant was guilty of the crime charged.

Houston v. Com. 87 Va. 257, 12 S. E. 385; State v. Luhano, 31 Nev. 278, 102 Pac. 260.

Bessey, J., delivered the opinion of the court:

Melvin C. Tipton, plaintiff in error, was on April 1, 1920, by verdict of a jury, found guilty of the crime of robbery in the first degree, committed on March 1, 1920. His punishment was fixed at confinement in the state penitentiary for a term of ten years. From the judgment on the verdict he appeals.

The facts in the case, as shown by the state's evidence, may be summarized as follows:

The accused was a resident of the city of Durant. In the early part

of December, 1919, he sold his business in Durant and went to Burkburnett, Texas, where he was temporarily employed, leaving his wife and two children in Durant, at the home of a Mrs. Edwards. Sometime in February, 1920, he received a letter from his wife, complaining of insulting treatment towards her by their family physician, a Dr. Armstrong. Upon receipt of this letter accused returned home, and his wife informed him more fully concerning the abusive treatment complained of. The accused was not satisfied that his wife had fully disclosed what had occurred between her and the doctor, and after many futile efforts to induce her to make further disclosures, and having for several days worried over what had been disclosed and what he suspected the truth in fact might be, he took his two children, on March 1, 1920, over to the home of his mother, and then went to a neighbor's house and telephoned Dr. Armstrong to come to his rooms immediately. Soon thereafter Dr. Armstrong arrived at the home of the accused, where he was met at the door by the wife of the accused and invited in; upon stepping inside the door the accused covered the doctor with a pistol, and ordered him to hold up his hands, directing his wife to search the doctor for weapons. Finding no weapons, the doctor, with his hands still held aloft, was ordered, in the face of this pistol pointed towards him, to sit down and relate to the accused all of the transactions that had occurred between the doctor and the wife of the accused in the latter's absence. Mrs. Edwards, in a room adjoining, heard the accused say: "I ought to shoot you like a dog." Anticipating trouble, Mrs. Edwards went to a neighbor's house and telephoned the police; a few minutes. later a policeman came, and Mrs. Edwards detailed to the policeman what she had heard. The policeman then went inside the room, and was informed by both Dr. Armstrong and the accused that his presence

there was unnecessary; that they were just having an argument over a matter of business which they could adjust among themselves. The policeman then stated that he came there as a police officer, on request, but that if he was not needed he would leave, and then departed without further action.

In this connection Dr. Armstrong claims that the accused up to this time had been threatening to kill him; that he kept his pistol pointed towards him, and, when the officer approached, the accused told the doctor not to divulge to the officer the nature of the difficulty, that if he did so he could kill him, and that he placed the pistol in his righthand coat pocket and kept his hand in this pocket during the time the officer was in the room, in such a manner as to be able to execute his threat. After the officer left the accused took the pistol out of his pocket, and again pointed it at the doctor. The accused claims that the doctor admitted to him that he had abused, mistreated, and insulted the wife of the accused, and offered a monetary settlement to right the wrong he had done, so far as he was able to do so; that after an extended discussion the doctor offered to pay the accused the sum of $1,000 in cash, to turn over to him a nearly new Dodge automobile, and to give him a note for $5,000, secured by a real estate mortgage. The doctor, on the other hand, testified that the admissions made concerning the treatment of the wife of the accused were made at the point of a pistol, through fear of immediate death, and that the accused with a drawn pistol exacted a monetary settlement; that he, while laboring under this fear and menace, agreed to pay the accused $1,000, to turn over to him the automobile, and to execute the $5,000 note in favor of the accused.

Either by agreement or through imminent fear of his life, Dr. Armstrong left the house and went to the bank for the purpose of secur ing the $1,000, followed by Tipton

(Okla. Crim. Rep. -, 212 Pac. 612.)

some distance in the rear; the doctor went into the bank alone, procured a cashier's check for $1,000, made payable to himself, and, according to previous agreement, met the accused near the bank, at the foot of the stairs leading up to a lawyer's office. In this office the cashier's check was indorsed and delivered by the doctor to the accused. In the meantime the doctor had telephoned to have his automobile sent down, to be left in front of his office, without disclosing what had occurred. The doctor directed the lawyer to draw a note for $5,000, which was done. The mortgage to secure the same could not be executed at that time, because the doctor did not remember the description of the land, and it was agreed that the note should be left with the lawyer, and it and the security therefor delivered later. Dr. Armstrong claims that during these transactions in the lawyer's office the accused kept his right hand in his right coat pocket, and that the money was paid over and the automobile delivered to the accused while he was laboring under imminent fear and du

ress.

The day following these transactions Dr. Armstrong left Oklahoma to confer with a brother in Texas concerning this difficulty. When he returned to Durant he was approached by the sheriff, and asked to sign a complaint charging the accused with robbery. This the doctor refused to do, and gave as his reason for such refusal that he was afraid of the accused. The sheriff then made some further investigation, and himself made the affidavit instituting the prosecution in this case. For the sake of brevity many of the incidents appearing in the testimony are omitted from this narrative of the facts.

A preliminary examining trial was had, and the accused was held to answer to the district court for the crime of robbery. The proceedings in the examining trial are not incorporated in the record here. Pursuant to the holding of the ex

amining magistrate, the county attorney filed an information in the district court, charging the accused with the crime of robbery, in language that might be construed to charge the crime of either robbery in the first degree or robbery in the second degree. Later on the county attorney secured permission from the court to file an amended information, specifically charging robbery in the first degree. The accused now contends that he was not accorded a preliminary examining trial supporting the charge of robbery in the first degree.

The language used in the first information filed stated:

66

Did then and there, and in the manner and by the means aforesaid, unlawfully and feloniously put the said Dr. Armstrong in fear of unlawful, immediate, and future injury to his person, thereby by the force and fear aforesaid did then and there produce in the mind of said Dr. Armstrong such fear of immediate and future injury to his person as was sufficient to and did overcome all resistance," etc.

Portions of the information as amended are as follows: ". Did then and there, in the manner and by the means aforesaid, unlawfully and feloniously put the said Dr. Armstrong in fear of unlawful and immediate injury to his person, thereby, by the force and fear aforesaid, did then and there produce in the mind of the said Dr. Armstrong such fear of unlawful and immediate injury to his person as was sufficient to and did overcome all resistance of the said Dr. Armstrong; and while the said Dr. Armstrong was under the influence of the fear aforesaid, the said defendant did then and there unlawfully and feloniously rob, take, steal, and carry away from the person and immediate presence of the said Dr. Armstrong, to wit, one cashier's check for $1,000, of the value of $1,000; one promissory note for $5,000, of the value of $5,000; and one Dodge passenger car of the value of $1,000; and all of the value of $7,

000, in good and lawful money of the United States of America, against the will and consent of the said Dr. Armstrong, and with the unlawful and felonious intent on the part of the said defendant then and there to convert and appropriate said property to his own use and benefit, and to deprive the true owner, Dr. Armstrong, thereof, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Oklahoma."

A demurrer to the amended information was interposed, upon the ground that the facts stated were insufficient to constitute the crime of robbery, and that the transcript of the examining magistrate, including the testimony taken at the preliminary hearing, was insufficient to support the information. The accused contends that in the preliminary hearing he was charged with and held for robbery in the second degree, and that the court erred in permitting the county attorney to amend the information so as to charge robbery in the first degree without any preliminary hearing as a condition precedent to an information charging robbery in the higher degree.

The proceedings in the preliminary hearing were not made a part of this record. This court has held in a number of cases that, where no specific affirmative record appears, it will be presumed that the accused has had a preliminary hearing as a basis for the information filed. The trial court, upon consideration of the demurrer to the amended information, in effect decided that the amendment charging robbery in the first degree was proper, and we

Indictmentpower to amend.

think by fair inference decided that the findings in the examining trial were sufficient to support the charge. The original information was ambiguous, some of the language used indicating that the offense stated was robbery in the first degree, while other portions of the language used may have been

considered to import robbery in the second degree. The amendment was doubtless allowed by the trial court to clarify this issue.

Robbery is defined by § 1784, Comp. Stat. 1921, thus: "Robbery is a wrongful taking of personal property in the possession of another from his person or immediate presence and against his will; accomplished by means of force or fear."

By the terms of § 1787 it is proIvided that the fear which constitutes the crime robbery may be the fear of an unlawful injury, immediate or future, to the person or property of the person robbed. Bearing this last provision in mind, we find the degree of robbery defined by § 1790, Comp. Stat. 1921, thus: "Robbery, when accomplished by the use of force, or of putting the person robbed in fear of immediate injury to his person, is robbery in the first degree. When accomplished in any other manner, it is robbery in the second degree."

It appears, therefore, that where the taking is accomplished by putting the person robbed in fear of immediate peril, it is robbery in the first degree; where it is accomplished by means of fear of future injury to the person or property, it would be robbery in the second degree. In the absence of any specific record to the contrary, this court will presume, under the conditions here recited, that the testimony taken at the examining trial and the findings of the examining magistrate were sufficient to support an information for robbery in the first degree.

Where an offense is by statute divided into degrees, the jury may find the accused guilty of any offense the commission of which is necessarily included in that with which he is charged. If there was no error in permitting the amendment,-and we think there was none,-the information as amended was sufficient to cover either degree of robbery. Comp. Stat. 1921, § 2740. The accused's punishment was fixed at the

(Okla. Crim. Rep. -, 212 Pac. 612.)

minimum for robbery in the first degree, and he now contends that the court erred in failing to submit to the jury the issue raised by the evidence, as he claims, of robbery in the second degree. In other words, it is contended that under the evidence he was entitled to such an instruction, which if given might have operated to mitigate his punishment.

All of the testimony on the part of the state, supplemented in part by the testimony of the accused himself, indicates that if Dr. Armstrong surrendered the money and the automobile under fear of personal violence, it was through fear of immediate peril; there is nothing in the record beyond a mere conjecture or suspicion that he handed over this property through fear of future violence. This being true, there was

Criminal lawinstructing on crime not supported by evidence.

no issue of robbery in the second degree, and the court committed no error in failing to instruct the jury upon an issue not raised by the testimony. The accused, in the court below, made no request for such an instruction. The case was tried on the theory that he was guilty of robbery in the first degree, or nothing. Where

there is no evidence offered tending to show a lower degree of the crime charged, the court will not be required to give an instruction defining such degree. Nail v. State, Okla. Crim. Rep., 192 Pac. 592; Leseney v. State, 13 Okla. Crim. Rep. 247, 163 Pac. 956; 1 Randall, Instructions to Juries, § 315.

The accused's theory of the affair was fairly submitted to the jury under the following instruction: "However, you are further instructed that, if you find or have a reasonable doubt as to the matter, after Dr. Armstrong arrived at the home of the defendant in response to his invitation to do so, at the time above mentioned, the defendant accused him of having insulted, injured, or wronged his wife, Mrs. Eva Tipton, and that the defendant threatened

to make the fact that the said Armstrong had so insulted, injured, or wronged his wife public, or threatened to bring civil action in a court for such alleged insult, injury, or wrong to his wife, which the defendant had a right to do, and that the said Armstrong then and there agreed to pay the defendant $7,000 in money or property, or any amount of money or property, if the defendant would not bring the matter into court or give it publicity, and that, in pursuance to said promise on the part of the said Armstrong, the said Armstrong and the defendant met at the office of the said Charles A. Phillips, and that the said Armstrong then and there, in pursuance to this agreement, delivered and paid the defendant said property, then and in that event the defendant would not be guilty of robbery, and you should acquit him."

The accused earnestly insists that the facts proved indicate that the offense, if it was an offense, was not robbery; that at most it was a species of blackmail or criminal conspiracy; that the fact that Dr. Armstrong left the home of the accused, unaccompanied by the accused, and went alone to the bank to procure the money, and, after having obtained the money, went to the place where they had agreed to meet, indicates that he was then free to inform others of his plight or to make his escape, and that he was no longer laboring under fear of immediate personal violence.

In an early English case it was held to have been robbery where thieves came to rob a person, and, finding little about him of value, by threats and menace of death, compelled this person, through fear, to promise to and to go away and return with more valuable property, which he delivered to the robbers while still under fear and duress. 1 Hale, P. C. 532.

The same rule applies where, under fear and duress, one draws a check or draft for the payment of money, and, acting under imminent

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