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(- Okla. Crim. Rep. 212 Pac. 612.) ty attorney to amend the information property, which, when procured, are to charge robbery in the first degree delivered to the person making the asonly. Held, further, that the prelimi- sault, while the person assaulted is nary hearing was sufficient to support under continued fear and duress, this the charge as amended.

constitutes robbery under the circum[See 14 R. C. L. 192; 3 R. C. L. Supp. stances outlined in the opinion. 193. See also note in 7 A.L.R. 1545.] [See 23 R. C. L. 1146, 1147; 3 R. C. Criminal law - instructing on crime

L. Supp. 1344.] not supported by evidence.

- what constitutes. 3. Where one is charged with rob

5. The taking of something of value bery in the first degree, the court com

from another by means of force or mitted no error in failing to instruct personal fear is the gist of the offense the jury, defining robbery in the sec

of robbery. Whether the motives ond degree, when there was no evi- leading up to the robbery grew out of dence offered tending to show a lower avarice, revenge, or other like motive, degree of the offense.

is immaterial, and the court committed [See 14 R. C. L. 786 et seq.; 3 R. C.

no error in refusing to permit an exL. Supp. 285; 4 R. C. L. Supp. 919.]

tended examination touching such mo

tives. Robbery — compelling act by another. [See 23 R. C. L. 1139; 3 R. C. L.

4. Where one points a pistol at an- Supp. 1342.] other, and, with threats and menace Evidence — sufficiency. of death, compels the person assaulted 6. The evidence as a whole, as outto leave the presence of the one mak- lined in the opinion, held sufficient to ing the assault to procure money and 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 State, 11 Okla. Crim. Rep. 259, 145 Pac. in error:

315; Cannon v. Territory, 1 Okla. The court erred in permitting the Crim. Rep. 600, 99 Pac. 622. state to file an amended information Messrs. Hatchett & Ferguson, Mccharging the defendant with robbery Pherren & Cochran, and J. A. Shirley in the first degree.

also for plaintiff in error. Rex v. Edwards, 5 Car. & P. 518, 1 Messrs. George F. Short, Attorney Moody & R. 257; Slover v. Territory, 5 General, and N. W. Gore, Assistant Okla. 506, 49 Pac. 1009; 22 Cyc. 436. Attorney General for the State:

Defendant was entitled to an in- Defendant was guilty of the crime struction of not guilty, because of a charged. variance between the aliegations of Houston v. Com. 87 Va, 257, 12 S. E. the information and the proof.

385; State v. Luhano, 31 Nev, 278, 102 Rex v. Edwards, supra; Monagham Pac. 260. v. State, 10 Okla. Crim. Rep. 89, 46 L.R.A.(N.S.) 1149, 134 Pac. 77; People

Bessey, J., delivered the opinion

of the court: v. Church, 116 Cal. 300, 48 Pac. 125; Slover v. Territory, 5 Okla. 506, 49

Melvin C. Tipton, plaintiff in erPac. 1009; Tyson v. United States, 7 ror, was on April 1, 1920, by verdict Okla. Crim. Rep. 433, 122 Pac. 733; of a jury, found guilty of the crime Cochran v. State, 4 Okla. Crim. Rep. of robbery in the first degree, com379, 111 Pac. 974.

mitted on March 1, 1920. His punIt was the duty of the court to give ishment was fixed at confinement in an instruction on robbery in the sec

the state penitentiary for a term of ond degree, because it is the court's duty to instruct upon all phases of the

ten years. From the judgment on case, regardless of whether the de

the verdict he appeals. fendant requests it or not.

The facts in the case, as shown Rhea v. Territory, 3 Okla. Crim. by the state's evidence, may be sumRep. 230, 105 Pac. 314; Monagham v.

marized as follows: State, 10 Okla. Crim. Rep. 89, 46 L.R.A.

The accused was a resident of the (N.S.) 1149, 134 Pac. 77; Nelson v. city of Durant. In the early part of December, 1919, he sold his busi- there was unnecessary; that they ness in Durant and went to Burk- were just having an argument over burnett, Texas, where he was tem- a matter of business which they porarily employed, leaving his wife could adjust among themselves. and two children in Durant, at the The policeman then stated that he home of a Mrs. Edwards. Some- came there as a police officer, on retime in February, 1920, he received quest, but that if he was not needa letter from his wife, complaining ed he would leave, and then departof insulting treatment towards her ed without further action. by their family physician, a Dr. In this connection Dr. Armstrong Armstrong. Upon receipt of this claims that the accused up to this letter accused returned home, and time had been threatening to kill his wife informed him more fully him; that he kept his pistol pointed concerning the abusive treatment towards him, and, when the officer complained of. The accused was approached, the accused told the not satisfied that his wife had fully doctor not to divulge to the officer disclosed what had occurred be- the nature of the difficulty, that if tween her and the doctor, and after he did so he could kill him, and that many futile efforts to induce her to

he placed the pistol in his rightmake further disclosures, and hav- hand coat pocket and kept his hand ing for several days worried over in this pocket during the time the what had been disclosed and what officer was in the room, in such a he suspected the truth in fact might manner as to be able to execute his be, he took his two children, on threat. After the officer left the acMarch 1, 1920, over to the home of cused took the pistol out of his pockhis mother, and then went to a et, and again pointed it at the docneighbor's house and telephoned Dr. tor. The accused claims that the Armstrong to come to his rooms im- doctor admitted to him that he had mediately. Soon thereafter Dr. abused, mistreated, and insulted the Armstrong arrived at the home of wife of the accused, and offered a the accused, where he was met at monetary settlement to right the the door by the wife of the accused wrong he had done, so far as he was and invited in; upon stepping in- able to do so; that after an extendside the door the accused covered the ed discussion the doctor offered to doctor with a pistol, and ordered pay the accused the sum of $1,000 him to hold up his hands, directing in cash, to turn over to him a nearly his wife to search the doctor for new Dodge automobile, and to give weapons. Finding no weapons, the him a note for $5,000, secured by a doctor, with his hands still held real estate mortgage. The doctor, aloft, was ordered, in the face of

on the other hand, testified that the this pistol pointed towards him, to admissions made concerning the sit down and relate to the accused treatment of the wife of the accused all of the transactions that had oc- were made at the point of a pistol, curred between the doctor and the through fear of immediate death, wife of the accused in the latter's and that the accused with a drawn absence. Mrs. Edwards, in a room pistol exacted a monetary settleadjoining, heard the accused say: ment; that he, while laboring under “I ought to shoot you like a dog." this fear and menace, agreed to pay Anticipating trouble, Mrs. Edwards the accused $1,000, to turn over to went to a neighbor's house and him the automobile, and to execute telephoned the police; a few minutes the $5,000 note in favor of the aclater a policeman came, and Mrs. cused. Edwards detailed to the policeman Either by agreement or through what she had heard. The policeman imminent fear of his life, Dr. Armthen went inside the room, and was strong left the house and went to informed by both Dr. Armstrong the bank for the purpose of securand the accused that his presence ing the $1,000, followed by Tipton (- Okla. Crim. Rep. -, 212 Pac. 612.) some distance in the rear; the doctor amining magistrate, the county atwent into the bank alone, procured torney filed an information in the a cashier's check for $1,000, made district court, charging the accused payable to himself, and, according with the crime of robbery, in lanto previous agreement, met the ac- guage that might be construed to cused near the bank, at the foot of charge the crime of either robbery the stairs leading up to a lawyer's in the first degree or robbery in the office. In this office the cashier's second degree. Later on the county check was indorsed and delivered by attorney secured permission from the doctor to the accused. In the the court to file an amended informeantime the doctor had telephoned mation, specifically charging robto have his automobile sent down, bery in the first degree. The acto be left in front of his office, with- cused now contends that he was not out disclosing what had occurred. accorded a preliminary examining The doctor directed the lawyer to trial supporting the charge of robdraw a note for $5,000, which was bery in the first degree. done. The mortgage to secure the The language used in the first insame could not be executed at that formation filed stated : time, because the doctor did not re- Did then and there, and in the manmember the description of the land, ner and by the means aforesaid, unand it was agreed that the note lawfully and feloniously put the said should be left with the lawyer, and Dr. Armstrong in fear of unlawful, it and the security therefor deliv- immediate, and future injury to his ered later. Dr. Armstrong claims person, thereby by the force and that during these transactions in fear aforesaid did then and there the lawyer's office the accused kept produce in the mind of said Dr. his right hand in his right coat Armstrong such fear of immediate pocket, and that the money was and future injury to his person as paid over and the automobile deliv- was sufficient to and did overcome ered to the accused while he was la- all resistance," etc. boring under imminent fear and du- Portions of the information as ress.

amended are as follows: “.. The day following these transac- Did then and there, in the manner tions Dr. Armstrong left Oklahoma and by the means aforesaid, unlawto confer with a brother in Texas fully and feloniously put the said concerning this difficulty. When he Dr. Armstrong in fear of unlawful returned to Durant he was ap

and immediate injury to his person, proached by the sheriff, and asked thereby, by the force and fear aforeto sign a complaint charging the said, did then and there produce in accused with robbery. This the doc- the mind of the said Dr. Armstrong tor refused to do, and gave as his such fear of unlawful and immedireason for such refusal that he was ate injury to his person as was sufafraid of the accused. The sheriffficient to and did overcome all rethen made some further investiga- sistance of the said Dr. Armstrong; tion, and himself made the affidavit and while the said Dr. Armstrong instituting the prosecution in this was under the influence of the fear case. For the sake of brevity many aforesaid, the said defendant did of the incidents appearing in the then and there unlawfully and felotestimony are omitted from this niously rob, take, steal, and carry narrative of the facts.

away from the person and immediA preliminary examining trial ate presence of the said Dr. Armwas had, and the accused was held strong, to wit, one cashier's check to answer to the district court for for $1,000, of the value of $1,000; the crime of robbery. The proceed- one promissory note for $5,000, of ings in the examining trial are not the value of $5,000; and one Dodge incorporated in the record here. passenger car of the value of Pursuant to the holding of the ex- $1,000; and all of the value of $7,000, in good and lawful money of considered to import robbery in the the United States of America, second degree. The amendment against the will and consent of the was doubtless allowed by the trial said Dr. Armstrong, and with the court to clarify this issue. unlawful and felonious intent on the Robbery is defined by § 1784, part of the said defendant then and Comp. Stat. 1921, thus: “Robbery there to convert and appropriate is a wrongful taking of personal said property to his own use and property in the possession of anothbenefit, and to deprive the true own- er from his person or immediate er, Dr. Armstrong, thereof, con- presence and against his will; actrary to the form of the statutes in complished by means of force or such cases made and provided, and fear." against the peace and dignity of the By the terms of g 1787 it is prostate of Oklahoma."

vided that the fear which constiA demurrer to the amended in- tutes the crime robbery may be the formation was interposed, upon the fear of an unlawful injury, immediground that the facts stated were ate or future, to the person or propinsufficient to constitute the crime erty of the person robbed. Bearing of robbery, and that the transcript this last provision in mind, we find of the examining magistrate, includ- the degree of robbery defined by s ing the testimony taken at the pre- 1790, Comp. Stat. 1921, liminary hearing, was insufficient to “Robbery, when accomplished by support the information. The ac- the use of force, or of putting the cused contends that in the prelimi- person robbed in fear of immediate nary hearing he was charged with injury to his person, is robbery in and held for robbery in the second the first degree. When accomdegree, and that the court erred in plished in any other manner, it is permitting the county attorney to robbery in the second degree.' amend the information

So as to

It appears, therefore, that where charge robbery in the first degree the taking is accomplished by putwithout any preliminary hearing as ting the person robbed in fear of a condition precedent to an informa immediate peril, it is robbery in the tion charging robbery in the higher first degree; where it is accomdegree.

plished by means of fear of future The proceedings in the prelimi- injury to the person or property, it nary hearing were not made a part would be robbery in the second deof this record. This court has held gree. In the absence of any specific in a number of cases that, where no record to the contrary, this court specific affirmative record appears, will presume, under the conditions it will be presumed that the accused here recited, that the testimony takhas had a preliminary hearing as a en at the examining trial and the basis for the information filed. The findings of the examining magistrial court, upon consideration of trate were sufficient to support an the demurrer to the amended in- information for robbery in the first formation, in effect decided that the degree. amendment charging robbery in the Where an offense is by statute difirst degree was proper, and we vided into degrees, the jury may

think by fair infer- find the accused guilty of any offense Indictmentpower to amend. ence decided that

the commission of which is necessathe findings in the rily included in that with which he examining trial were sufficient to is charged. If there was no error support the charge. The original in permitting the amendment, and information was ambiguous, some we think there was none,-the inof the language used indicating that formation as amended was sufficient the offense stated was robbery in to cover either degree of robbery. the first degree, while other portions Comp. Stat. 1921, § 2740. The acof the language used may have been cused's punishment was fixed at the

instructing on erime not snp

(- Okla. Crim. Rep. ---, 212 Pac. 612.) minimum for robbery in the first to make the fact that the said Armdegree, and he now contends that strong had so insulted, injured, or the court erred in failing to submit wronged his wife public, or threatto the jury the issue raised by the ened to bring civil action in a court evidence, as he claims, of robbery for such alleged insult, injury, or in the second degree. In other wrong to his wife, which the dewords, it is contended that under fendant had a right to do, and that the evidence he was entitled to such the said Armstrong then and there an instruction, which if given might agreed to pay the defendant $7,000 have operated to mitigate his pun- in money or property, or any ishment.

amount of money or property, if the All of the testimony on the part defendant would not bring the matof the state, supplemented in part ter into court or give it publicity, by the testimony of the accused him- and that, in pursuance to said promself, indicates that if Dr. Armstrong ise on the part of the said Armsurrendered the money and the au- strong, the said Armstrong and the tomobile under fear of personal vio- defendant met at the office of the lence, it was through fear of imme- said Charles A. Phillips, and that diate peril; there is nothing in the the said Armstrong then and there, record beyond a mere conjecture or in pursuance to this agreement, desuspicion that he handed over this livered and paid the defendant said property through fear of future vio property, then and in that event the lence. This being true, there was defendant would not be guilty of

no issue of robbery robbery, and you should acquit Criminal law- in the second de- him.”

gree, and the court The accused earnestly insists that ported by evidence.

committed no error the facts proved indicate that the

in failing to in- - offense, if it was an offense, was not struct the jury upon an issue not robbery; that at most it was a speraised by the testimony. The ac- cies of blackmail or criminal concused, in the court below, made no spiracy; that the fact that Dr. Armrequest for such an instruction strong left the home of the accused, The case was tried on the theory unaccompanied by the accused, and that he was guilty of robbery in the went alone to the bank to procure first degree, or nothing. Where the money, and, after having obthere is no evidence offered tending tained the money, went to the place to show a lower degree of the crime where they had agreed to meet, incharged, the court will not be re- dicates that he was then free to inquired to give an instruction defin- form others of his plight or to make ing such degree. Nail v. State, - his escape, and that he was no longOkla. Crim. Rep. - 192 Pac. 592; er laboring under fear of immediate Leseney v. State, 13 Okla. Crim. personal violence. Rep. 247, 163 Pac. 956; 1 Randall, In an early English case it was Instructions to Juries, § 315.

held to have been robbery where The accused's theory of the affair thieves came to rob a person, and, was fairly submitted to the jury finding little about him of value, by under the following instruction: threats and menace of death, com"However, you are further instruct- pelled this person, through fear, to ed that, if you find or have a reason- promise to and to go away and reable doubt as to the matter, after turn with more valuable property, Dr. Armstrong arrived at the home which he delivered to the robbers of the defendant in response to his while still under fear and duress. 1 invitation to do so, at the time above Hale, P. C. 532. mentioned, the defendant accused The same rule applies where, unhim of having insulted, injured, or der fear and duress, one draws a wronged his wife, Mrs. Eva Tipton, check or draft for the payment of and that the defendant threatened money, and, acting under imminent

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