State v. FrazierState v. Frazier
Dеfendant appeals from a judgment and sentence entered after a jury had returned a verdict, finding him guilty of robbery.
The information filed against defendant is definite. 1 It described date, place of ocсurrence, from whom the money was stolen, and details of the alleged robbery defendant was accused of perpetrating. 2 It is beyond dispute that defendаnt was informed of and knew of that with which the state charged him. The state’s information did not mislead either defendant or his counsel.
Mr. Minor, the complaining witness, testified that late in the evening of October 29, 1967, he procured the services of a young woman — later identified as Quincy Hill Brown— for an illicit relationship for which he paid hеr $15. They retired to her apartment. She left the room on several different occasions. When she returned the last time, Mr. Minor testified that he heard footsteps on the stairs and someone — later identified as defendant — tried to enter the bedroom.
As defendant forced his way into the room, he grabbed Mr. Minor by the right wrist and said, “No white man will mess around with my wife.” Defendant and Quincy Hill Brown were not husband and wife. Defendant then said, “Get out of here. Give him his pants. Give him his pants.” *375 At this point, Mr. Minor saw the young woman sitting on the bed going through his billfold.
Mr. Minor grabbed his pants, shoes and jacket and left the building. Defendant made sure that Mr. Minor left; he accompanied him for about a block аnd a half. Mr. Minor contacted the police. They immediately converged on the house. Defendant was arrested. Hidden in the upstairs apartment of Quincy Hill Brоwn was Mr. Minor’s wallet, his money, necktie, cigarette lighter, and his hotel key. 3
Defendant assigns error to instruction No. 11 given by the trial court.
You are instructed that every person concerned in the commission of a felony, whether he directly commits the acts constituting the offense, or aids and abets in its commission, is a principal and may be proceeded against as such, and if you find from the evidence in the case beyond a reasonable doubt that a robbery was committed аs alleged in the Information, and that the defendant, Raymond Frazier, participated in such robbery, or knowingly and willfully aided or abetted, counseled or encouraged in its commission, then the defendant, Raymond Frazier, would be guilty of robbery as alleged.
You are further instructed that to aid and abet may consist of words spokеn or acts done for the purpose of assisting in the commission of the crime or of encouraging its commission.
Defendant argues that since he was chargеd alone it was error to give the aiding and abetting instruction for it (1) constituted an improper and unconstitutional variance from the allegations of the information, and that (2) the evidence did not warrant giving the instruction.
It is fundamental that an accused has the fight to demand and must be infоrmed of the nature and cause of the accusation against him.
In Gifford, the information charged defendant with the crime of rape and set forth that the crime was committed by carnal knowledge of a female under the age of 18. It was developed at the trial that the information did not inform defendant of the nature or cause of the accusation against him as is required by the constitution. There was no proof that defendant committed rape; he had acted as a procurer. It is apparent that the informatiоn did not furnish the defendant with notice that proof would be offered charging him with procuring others to commit the crime of rape upon the prosecuting witness. In rеversing defendant’s conviction the court said:
[I]t is not the policy of the law to compel persons charged with a crime to enter upon their defensе without knowledge of the character of proof which they will be compelled to meet.
The aiding and abetting statute could not save the situation. To usе it to do so would clearly violate constitutional requirements, for the information still did not inform de *377 fendant of the circumstances upon which the state relied for conviction.
Subsequent decisions of this court have restricted
Gifford
to those situations in which the court recognizes that the charge as a principal under the aiding and abetting statute cannot be sustained if thе evidence does not tend to establish that defendant was involved in the crime
charged. The
best example is
State v. Nichols,
If one is charged with a criminal act which the state’s proof shows it was impossiblе for him to have committed, he has nothing to answer, . . .
There is no unconstitutional variance here.
We do not agree with defendant’s contention that the evidence did not warrant giving instruction No. 11. The proof, if believed by the jury, established that the robbery took place; that defendant was present at the scеne; that defendant accused Mr. Minor of “messing around” with his wife when the woman involved was not his wife; that defendant rushed Mr. Minor from the house and made certain that he left the neighborhood. There was sufficient evidence to support the jury’s conclusion that defendant aided and abetted the commission of the crime.
The judgment is affirmed.
Finley, Rosellini, and Hale, JJ., and Stafford, J. Pro Tem., concur.
Notes
Raymond Frazier, on. or about the 29th day of October, 1967, within Yakima County, Washington, with intent to deprive the owner thereof, did willfully, unlawfully and feloniously, then and there take from the presence of Edward M. Minor, and against his will, certain personal property, to-wit: the sum of approximatеly $200, lawful money of the United States of America, the personal property of Edward M. Minor, which said property was then and there within the lawful custody and control of the said Edward M. Minor, by means of placing the said Edward M. Minor in fear of immediate injury to his person, by then and there aiming at and exhibiting to the said Edward M. Minor a .22 caliber рistol and commanding that he make no resistance to said taking, which putting in fear was used to obtain possession of said property and to prevent and overcome any resistance to said taking, contrary to the statutes in such case made and provided, and against the peace and dignity of the Statе of Washington.
Defendant had been charged with using a weapon during the alleged robbery. The jury, however, answered a special interrogatory in the negative upon this issue.
Quincy Hill Brown’s conviction of robbery has been affirmed.
State v. Brown,
We are aware of
State v. McCaskey,