Traxler v. State

Percy Hughes, Hobart, plaintiff in error. Atty. Q. Williamson, Gen., in error.

Mac for defendant JONES, defendant, Stephens, an information was The Melvin J. driving county county an automobile of Kiowa filed public tried, intoxicating liquor, highway con- was' influence of while under the pay jury pursuant fine of one was sentenced victed verdict dollar, appealed. and has appeared. argument assigned regularly one for oral no The was cause circumstances, pursuant Under such Neither has there been the rules of this appears brief filed. court, none error examine the record fundamental we judgment upheld. will sentence driving proof on an automobile the accused The showed that state’s county Highway His actions on the road miles from Hobart. few 9 in Kiowa apprehended he the defendant notified and were such that sheriff was weaving driving. car was he The sheriff testified that defendant’s while highway him and saw he observed and after he arrested on that saw the he in an Two other witnesses who intoxicated condition. testimony denied that of the sheriff. The defendant defendant corroborated although admitting that drunk two bottles of beer about he was intoxicated 3:30 he had weaving explained He road 4:00 o’clock afternoon. light shining saying bright up mirror and he him with a car drove behind light. by a turned to avoid blinded reflection from his ear of fact for the determination evidence raised their will sustained. verdict fairly law we have substantial error The instructions stated the found require a reversal of the conviction. which would accordingly judgment county county sentence court Kiowa affirmed. BRETT, J., POWELL, J., concur.

TRAXLER v. STATE. 10, 1952.

No. A-11586. Dec.

Rehearing Denied Jan.

(251 815.) P. 2d Bracewell, Houston, Tex., Steger, McPheron, Durant, and W. L. B. J. S. Alan Durant, plaintiff error. Lattimore, Atty. Gen., Atty. Gen., Williamson, Asst. H. R. H. Sam Q. Mac County Atty., Bryan Durant, Shirley, County, County Atty., Mills, Asst. and J. A. Caddo, Martin, Gossett, Boland, and Louie Lewis T. Denton Gossett L. John Durant, in error. for defendant Traxler, defendant, POWELL, Roy (Pete) referred to as hereinafter was J. Bryan Oklahoma, county, where he was court of tried in the district convicted charge jury authorized, with firearms. was a of on before sentence, punishment the death but his to inflict 21 O.S. 1951 Tit. Penitentiary. imprisonment years in the State This was at five assessed penalty. with defendant dissatisfied the outcome would minimum by seeking Appeal greater punishment accordingly a new trial. hazard much perfected to this court. been Trimmer, a farmer the automobile of Prank The defendant admits to endanger Bryan county, gun forcing another to Trimmer and escape by flight officers, pursuing their lives with him from but seeks punishment plea subsequent on reformation be- certain technical issues and a tween the date the act in 1937 and date of trial 1947. specifica- chronological history A of the case is for treatment presented. tions of error justice July.22, 1937, complaint was filed Under date of Bryan sitting examining magistrate, peace Sparger, county, as an with firearms. While this court of W. D. charging complaint with the defendant granted pending the Governor of the Governor of Oklahoma prisoner Texas a writ of extradition for the was return to Texas. The defendant’s serving resume a a reason thereof delivered to the Texas authorities to Penitentiary, life in the Texas from which institution he was sentence charge fugitive when arrested on the above filed Oklahoma. August 12, 1946, having brought been into Under date Oklahoma, county Bryan county, by the sheriff of that after extradition from penitentiary there, where he had remained after release from the a new Texas complaint justice against Thompson, setting was filed him the court of Lee out charge complaint same first filed and mentioned above. The contained granted change 6, 1946, of venue on November and the defendant was transferred to tion was had case justice Woodward, preliminary of A. O. examina- 5, 1946, and the defendant was over December bound to the county Bryan to answer the district court The firearms. charging part of the information reads: * ** Roy (Pete) Bryan the above named defendant Traxler late of County, Bryan County, Oklahoma, did in and in the State of on or about the day July year 21st of our Lord One Thousand Nine Hundred and Thirty-seven Robbery commit the crime of With Firearms in the manner and form as follows: say, County “That is to defendant did said at the date unlawfully, wrongfully, knowingly, wilfully feloniously above named make upon firearm, weapon, an assault one Frank Trimmer with a certain pistol to wit: a certain then and there had and held in the hands said Roy Traxler, thereby (Pete) putting then and the said Frank Trimmer in fear injury person by threatening of an immediate said Frank Trimmer aud did then and there to his life and to shoot and kill the force, means and use said putting unlawfully, wrongfully, wilfully feloniously, threats and in fear him, Trimmer, take, the will and without the consent of Frank said carry away per- steal and from the of said Frank Trimmer certain property, Automobile, personal sonal to wit: A certain 1935 model Chevrolet property with the the said belonging $400.00, of and Frank said Trimmer and of the value of unlawful, wrongful part and felonious intent then there on Roy (Pete) deprive Traxler to rob and the said Frank Trimmer of said Roy him, and to convert the same to the use and benefit of the said * * (Pete) Traxler; charge day April, 1947, The defendant was first tried on the on the 14th jury being agree, but the unable to a mistrial was declared. The case was next 18, 1950, resulting tried on December as above. complained of, present For reversal of the conviction counsel for defendant urge eight specifications error, which we shall treat in order as out. set “having unconditionally It is first contended that the Governor of Oklahoma granted complaint a writ of extradition to the authorities Texas while a robbery by against pending Oklahoma, firearms iif not thereafter bim could purpose trying upon reextradite him to the state of Oklahoma for the him complaint alleging the same offense.” In it is to or not the Texas this case consider whether might properly application requisition have refused to have honored the theory fugitive by prior Traxler not a reason of action of Governor permitting of this state the defendant’s return to Texas. This is so actually simple reason that the defendant was returned to the of Oklahoma charge accomplished for trial on the defendant was in stated. We are with an faced fact. The against pending The Oklahoma. him had never been disposed of. In Jarrett v. 49 Okla. we Cr. held that where an ac person is with an cused offense under the laws of this state and before requisition trial a taken is honored the Governor of this and accused is state, jurisdiction try another this state has not lost him if there custody parte Youstler, after he comes into the of this state. inAnd Ex 40 Okla. principle involved, Cr. where the same we stated: person felony appeals “Where a in this state for convicted conviction, pending appeal by supersedeas, such such is released and while at liberty proceedings, person is delivered the Governor of this state to a sister state extradition delivery jurisdiction such ais waiver of the of this state over the right per- and a waiver of the of the state to demand the return of such fugitive justice. honoring requisition son thereafter as a does satisfy judgment, and, person brought not be if thereafter such convicted apprehended jurisdiction acquired, within this state and of his he may ease this required satisfy judgment conviction this state.' In such court, by corpus, inquire habeas will not into the manner jurisdiction of his is obtained.” See, also, Waters, parte Adams v. 237 P. 2d Ex Hart, 95 Okla. P. 2d 859. honoring requisition act of Governor of Oklahoma in operate proceedings pending against Governor of Texas did not void Bryan county extradition, pardon defendant at the time of such nor constitute a most, properly raised, only for the acts involved. At it formed the basis for holding jurisdiction that such fact amounted to a waiver of the of this state to demand fugitive. defendant’s return to this state on account of But seen, way. as we have it did not work out that complaint In a motion to dismiss the filed him the defendant inception proceedings asserted in said motion that at the time the Governor granted requisition 15, 1946, “agreement Texas on October there was an understanding county attorney between the Attorney of Oklahoma and the attorney General of Texas and defendant’s that the defendant would be afforded opportunity apply a reasonable to the courts of the State of Texas for a writ corpus validity detention, of habeas hearing being to test the of such said on a Tuesday, granted and it was Friday, understood that defendant until would.be application.” alleges which to make file such The motion then some further dealings attorneys between day and the October, fact that on the 18th county, was delivered the brought Texas, sheriff of Denton Bryan county, officers of who then defendant into Oklahoma. It is there- argued by granted fore defendant that when the Governor of Texas extradition right the defendant had a “constitutional of a apply reasonable time” in which to corpus, right for writ of habeas through was denied him violation of promise made to the Governor of Texas. 236 allegations of of the no evidence as to correctness record contains though urged motion, and is all in the trial court times raised allegations

properly However, would of the raised in this court. the truthfulness appear immaterial, general rule, applicable the factual seems as the and which A.L.R., p. 948, here, that: is said in a where it situation is stated note virtually a crime rule of law that where a accused “It is universal charged, jurisdiction is held wherein he is so is found within the territorial juris- jurisdiction, process legally neither the of that under issued from court right put him on trial for the offense diction of the court nor the impaired by jurisdiction, brought from another the manner in which he was pro- abduction, irregular by kidnapping, illegal arrest, extradition whether ceedings.” principle supporting general that when a accused The basic this rule is process proper forum, is not of crime is under valid such detention held preceded, illegality or which which rendered invalid because of the events holding wrong against physically possible. him the state made detention His obtaining illegality employed in is not to be of the of the means condoned because custody. subject inquiry. bring be a The means used to him there will not State, P. 112. Mathews v. 19 Okla. Cr. years alleged after the “the trial of Traxler 13 commission Counsel asserts that speedy delay of a a denial of the offense when was no fault his constituted contrary of the trial United States.” to the of the State of Oklahoma constitution laws right of an to a rule with reference to the accused are referred We 1037; Jur., p. 858, speedy Am. Vol. 118 A.L.R. trial as stated in 14 State, P. 2d of Glover v. 76 Okla. Cr. also cited are the cases State, 112 P. 2d 419. The rules Meadows v. eases are 71 Okla. Cr. prisoner inapplicable where the evolved situations because charges sovereign prison the other in a of the same which confined though pending, to obtain a free on bond was unable or where the accused were trial at one present analogous nearly subsequent More to the or more terms court. prisoner being delayed by reason of a where a trial is case is a situation A.L.R., prison. p. in a Federal See annotation at 1046 Vol. confined prevailing Thompson State, In 96 Okla. Cr. 247 P. 2d 535. such cases guilty appears applicable of laches rule to be that the state authorities are not clearly bring accused to trial that “it had been failure to incarcerated prisoner in a a Federal a state for a trial the surrender of established that state court on state charges entirely rests within the discretion the United unqualified right, require state, States, a matter of can insist or and that no supra. prisoner produced trial before A.L.R. be its tribunal.” that a federal before, by reason of the facts this case Gov from what we have said properly requisition though possessed right denied not have absolved Traxler of even to have ernor of Texas the ground have been technical and would would jurisdiction charged, if he have thereafter come within the the crime should this State. complaint argued specification of error four that “the should It under alleged nine the crime was to have been committed have been dismissed because alleged filing complaint showing years prior and no facts were tolling limitations.” of the statute of State, 176, 178, In the of Osborn this court case report, syllabus stated: ten of the official negative single element limitations does statute of “The charged. guilt may put It does not issue the which a defendant prove prosecution therefore is defendant. It period usually the state within resident not an inhabitant or defendant was of statute of limitations.” have tolled the time which would prosecution argued specification specifically this five is then under statutory provision applicable is- barred the statute of limitations. reading: Title 22 O.S. section prose- the defendant be out “If when the offense is committed coming may after within term herein limited cution within the commenced during an inhabitant of or is not the usually and no time part State, is of the limitation.” resident within the 18, Davenport 253, Cr. cited in the In the Okla. case of ease, supra, this court states: Osborn upon that, is relied of limitations is where the “It settled well statute upon prove pre- action, defendant in the burden is defense a criminal any showing ponderance not tolled.” is that the statute of limitations matter of the evidence actually undisputed that the defendant was outside the is but The evidence complaint in within was first filed the case in 1937 of Oklahoma after the finally answer within this state to to the incarcerated the time he was until Penitentiary, discharge charge, being until his in the Texas State he confined employment 1946, at Denton in that state and remained there in when he found question presented is whether The under such to this state. extradited until year prosecution of limitations. the three statute was barred Section this facts 152, 1951. Ttle 22 O.S. Oklahoma, the at all times a that defendant was resident Counsel contended county, running in Caddo the of the statute was this case. It is home not tolled his by in Texas under the as in his absence circumstances asserted years spent during in “time Texas cannot considered as the which defendant ususally State,” contemplated an inhabitant of or resident within the is not 153, quoted provisions Tit. 22 O.S. 1951 above. Attorney legal General that “whether defendant’s It is stated domicile during years in of Oklahoma those or in the State Texas is a matter not remained certainly He further “It is to determine.” asserts: true that he was ‘usually support of or resident’ within the state.” in not an inhabitant Cited People Carmen, 23, 197, 198-200; 385 Ill. 52 N.E. the cases are State v. Snyder, and Jarrett v. 182 Mo. 82 S.W. 49 Okla. Cr. carefully point. studied, these cases and find them in In first We have 888. [385 said, part 198]: in Ill. 52 N.E. 2d Illinois court case many [the defendant] position support he of his cites cases “In which hold operate change person’s legal involuntary does not removal an residence jurisdiction an in which he had at the established residence time law, deny. is the settled rule of no one will That this The removal. cases such cited here They upon question here. are not in are of value on the and relied legal question in this case is not concerned with the the cases resi- involved. any Hence, plaintiff wholly in reference would error. cited dence immaterial. agree announce, rule will with the which in a All case where question is, usually ai>plicable publicly here whether he was rule is during penitentiary he the time that was confined in the this State within resident in The was, time, during he at no within Missouri, time the State of which Illinois. suggests In answer. order to take the mere statement statute, limitation, tolling the it is not of the words sufficient out case legal might an have maintained established all times and fixed resi- he that dence appear usually publicly further that It he was must the State. within State.” within resident “usually”, analyze Following above, proceeds the court words “publicly” It is then stated: and “resident” as used the statute. equally publicly His State. he was not resident within the “It is clear that residence, connection, place legal any, as his with the which he now claims seen, general generally open knowledge He was not to the view of all. engaged place. activities He there known heard or about was not during public. time, period here on At no carried before * *” material, was he there at all. concluded: a man’s the State. “* legal ^[*] legal residence, ^[*] * * *” Notwithstanding residence of the defendant. It is based section 5 of division IV of the rule that involuntary solely upon imprisonment Criminal Code is his absence cannot not based change the defendant have seen the within case that while Traxler con- We Bryan jail County firearms fined and while the with justice hearing, pending preliminary was to Texas ler was ordered released from such life defendant was extradited serving December, 1944, where he a life But in Trax- had been sentence. upon corpus. a writ of habeas sentence parte Traxler, He was ordered Ex retried. 147 Tex. Cr. R. 2d 286. S.W. retried, parte Traxler, He was never in 1946 See Ex released bond. August, 1946, employment R. Tex. 749. In S.W. 2d found Denton, August Texas. He return did not to his home in On claimed Oklahoma. complaint, mentioned, Bryan County, a new as hereinbefore filed July 21, identical one filed case, supra, syllabus: In the Jarrett this court said 'charged Where an “1. accused offense laws of under the requisition state, this and before state trial a is honored Governor of this state, jurisdiction try taken and accused is to another this state not lost custody him if thereafter he into the comes of this state. prosecution public A a “2. for offense than other murder must com- years within three menced after its commission. prosecution meaning 2442, Comp. A “3. within of sections 2441 and St. 151, 152], [Tit. preliminary §§ O.S. 1951 is at the time ‘commenced’ complaint magistrate good or information filed is with a faith and a warrant thereon. issued It is not essential that the warrant shall be served in that order prosecution be commenced. prosecution public by filing “4 When a for a has been offense commenced preliminary complaint good a or information in faith a and warrant issued thereon, custody but the not accused does come into the of the state until after expiration year period, may proceed original of the three the state on the preliminary complaint may charging file another the identical offense.” notwithstanding involuntary It is our imprisonment conclusion the rule that change legal residence, cannot a man’s that Tit. O.S. 1951 not 153 is based legal solely upon on the residence of the defendant. It is based his from- absence the state. is our might, further conclusion the within case the state under recited, proceeded original preliminary complaint, facts have but that complaint charging it was error where a new the identical offense was filed. By specification the sixth of error it is contended that: appropriately to jury upon Court should have “The instructed the the law temporary applied as firearms.” taking place at the scene of incidents of the actual this a recitation At developed by following same, robbery alleged, evidence and the trial, at consideration of the defendant statements given of the instructions as well as of the instructions or incorrectness correctness requested. peace Beams, A. was town officer town G-. who From the evidence to, developed county, Kingston, it was the events testified at the time of Marshall county), McLaughlin Bryan Deputy he, (the sheriff of Jim a Mr. Risner reported companion, Traxler a the defendant received information had vicinity. Penitentiary Huntsville, escapees in the at were the Texas State eventually looking them, driving a saw around The officers commenced Kingston. They they a line near the Traxler section road decided was car car ending on the river. When the onto a dead-end road Washita followed car companion got stopped stopped his car their car. Traxler and Traxler officers firing officers, who returned fire. of their out car and commenced firing companion one was a rifle and No hit. Traxler was Traxler and his six-shooter. slight high grass companion went down a embankment into gave escaped. woman, Traxler who her name as Mrs. The officers found car, proved wife, ammunition in who front seat of the the defendant’s and found to be July 20, was on for Traxler continued. This search car. July 21, 1937, developed thereafter, and on around 8:30 evidence subsequently killed, companion morning, Tindol who was Traxler and they appropriated, Denton, hostage, had E. a farmer whose car with appeared James Trimmer, witness, prosecuting farm home Frank nine at the Bryan gasoline county seeking miles Durant in their car. northeast of After leaving ditch, they foot, having the Trimmer home soon returned run their car in a proceeded by brandishing pistol, to take the Trimmer car and threat- them, take ened to take Mrs. Trimmer with and did Mr. Trimmer. Yes, “A. he he was Witness Trimmer testified: came back and said after my car.” “Q. your Q. Now, up, After A. he ear? Yes. when first came what was just Well, up right up they— then? A. I—he said Q. they Q. walked to me and said — anything they got They any gas? Was about said whether or not A. said something they run their car the ditch or after came back mine. you them, anything? they And tell if A. I what did them I think told didn’t get Q. happened? they my guns would and said and Tindol. it. Then what A. Well stuck their side they they expect Q. guns your would. Who stuck side? A. Traxler they get your Q. Q. guns, now, they Did A. Yes. They Those car? they long arms, Q. Now, pistols. short arms or were arms? A. were short taking anyone them, any- what else thing? on and was said there to them reference my Well, me, go A. wife not to take asked them to take the car and we— Q. me, response Well, take and— What was their to that? A. one- them, said, might just good.’ pretty of Traxler Tindol ‘we take her. She looks * * * said, ‘No, Well, we are loaded A. I now.’ asked them when got a get water, telephones time, out to I at that drink asked them told them we were in strange country, way and no or no I communication. asked them to car, destroy it; maybe leave me all out and take Xasked of them not to get back, poor man, buy I would Q. I it and that was a and was not able to another. They response said, What was their to that? A. ‘You must think we are * * * Q. Well, now, letting you damned fools.’ A. what was their attitude about out? They they any Q. didn’t indicate that intended to let me at time. out Did they you they you going any given ever tell to let out at or certain place? they stopped there, again, A. When over I asked them to take the car said, go, ‘No’, you and leave me said Traxler will no. ‘We let out when get river, you said, we but won’t talk.’ And men across Tindol ‘Dead don’t ” you talk, know.’ additionally stopping place Witness Trimmer testified that at a where the momentarily guns

robbers had dozed and he and Denton had seized their captured, stated, “Well, buddy my Tindol had been killed and Traxler that Traxler get you will for this.” attempt explain taking car, In an of the Trimmer the defendant at attorneys, trial had been asked one of his and answered as follows: “Q. you you appropriating I will ask whether or not had intention of stealing No, sir, Q. your and about Trimmer’s car? A. I didn’t. What was intention it, Oh, just get away. trying get away Pete? A. I wanted to I was officers, just get from the and I wanted to a little further on down road. taking depriving it, it, selling I keeping had no intentions his car and him of it, burning to destroying only intention, or it I otherwise. had one and that was get away, if I could.” important point keep An in mind is that nowhere in the evidence of de- explicit categorical fendant do we find an denial of the truthfulness of the witness as to factual matters with reference to the or testimony prosecuting expressed and use of the automobile as well intentions at the time by the robbers. appellant subject robbery following requested submitted on the in- structions : requested “Defendant’s Instruction No. 1. are “You instructed that the essential elements of the crime in this infor- * * * property

mation are: ious 4th. The of said must have been with a felon- deprive permanently intent the owner thereof and to convert the same to * * *” the use and benefit of the taker. requested Defendant’s Instruction No. 5: you guilty “You are instructed that before could find the defendant of rob- information, bery, you evidence, as set forth must believe from the be- yond doubt, [at] taking, a reasonable the time of the if the defendant did alleged, permanently the automobile as he appropriating

take the had intention of same to his own use and benefit. car, “If the took the but at the time of the had the intention using temporarily purpose effecting escape, the same his or if he it, repossessed to use the same for a time then intended abandon to be ” owner, you guilty.’ will find the then defendant ‘not following Pertinent to the raised must be considered the instructions actually given the court: [See You are instructed that “No. 3. Secs. 791 to 797 of Tit. 21 O.S.A. wrongful taking below] quoted personal property is defined to be the person possession presence, another from or in the will, accomplished fear vent may immediate means of force or fear. To constitute the force or employed property, pre- to obtain or retain must or to taking. to the or overcome resistance fear which constitutes first, injury, either: the fear of unlawful immediate or future to the person property robbed; second, the fear of an immediate or injury anyone company per- unlawful son robbery. robbed, the time of the particular 4 You are instructed that “No. statute under which this [See prosecuted charge below, 1951, quoted reads as follows: 801 of Tit. 21 O.S.A. quoted complete 4].” verbatim to instruction No. personal property, are the value of the You instructed “No. 5. automo- alleged bile, been taken from the to have said Frank Trimmer the defend- is alleged of the offense Roy (Pete) the time of the commission at Traxler ant immaterial. you the and find if believe instructed You are therefore “No. 6. charged the date beyond about or on a reasonable doubt in this case evidence filing of Informa- Information, any prior the date to the of time in or at years December, 1946, when day of herein, or within the 6th of which was on tion Oklahoma, County, State, Bryan the defend- of returned this he was —in pistol, firearm, one a rob Roy (Pete) to wit: of with the use Traxler did ant personal property, automobile described to wit: Trimmer of Frank certain pres- possession information, of or immediate of the the same out against will, by putting in the said fear his Trimmer and of the said Frank ence Frank guilty you firearm, the defendant then will find such Trimmer use of Information, fix his firearms as of of the crime punishment therefor. guilty beyond you hand, a the other do not believe “On guilt, offense, you a doubt of his or if have reasonable doubt of such reasonable acquit you will the defendant.” then persons, two or more that whenever “No. 12. You are further instructed persons equally guilty robbery, acting together, of such of such commit each persons robbery just though in- as of had committed each beyond person. you dependently of If find a reasonable doubt the other Roy (Pete) to Mr. Trimmer’s house with the in- Traxler and Fred Tindol went robbing [and vehicle] of said tention Mr. Trimmer his ear did rob him motor of of together robbing automobile, Trimmer that both acted Mr. then each of regardless guilty of of which one of them took most active of them robbery] [committing robbery. (Italics part supplied.) (Suggested said brackets.) improvements in part information, quoted, based heretofore material on indicated) (given as No. as above reads Tit. 21 O.S.A. Instruction which follows: as Any any any person persons who, “§ 801. or with the or use firearms dangerous weapons, attempts any person persons, robs to rob or or or other any place business, attempts banking or to rob or who robs residence institution any place by any person persons any time, inhabited or or or either other attended day night, guilty felony, and, upon therefor, or shall conviction by death, punishment imprisonment, labor, shall suffer Penitentiary, or at hard in the State period years, of time of not less than at the five discretion Court, jury trying the or the same.” given, except quoted No. instructions have been held to be definitive nature, while under Section which information was filed and on based, 4 was been instruction No. held statute of which not of classification and State, 189; Simpson definition. Woods 68 Okla. Cr. 99 P. 2d 783. 40 Okla. covering robbery, (and provisions all Our the instructions based, indicated) may given 791-801, §§ be found in Tit. 21 O.S. 1951 stated, quote: and we heretofore wrongful taking personal Robbery property possession “§ is a in another, person presence, or will, from his immediate ac- (Italics supplied.) complished or force fear. means of robbery, employed “§ the force or fear 792. To constitute must be either to property, prevent of the or to or retain or obtain overcome resistance merely taking. employed escape1, If as a means of to the it does not constitute robbery. meaning provision example of this is found is of the 1 An Kernell v. reading that case will demonstrate inapplicability rule to the situ the within case. ation ways employed specified “§ last 793. When force is either of the degree section, employed of force is immaterial. robbery may “§ 794. The fear which constitutes be either: injury, future, person “1. The fear of an unlawful immediate or property person his, family; robbed or of relative of or member of his or, injury person prop- “2. The fear of an immediate unlawful erty anyone company robbery. robbed, at the time of the property circumstances, required “§ 795. When is taken under the to con- robbery, property trifling qualify stitute the fact that the value does not offense. robbery, “§ 796. The from the of another is not clearly appears fully completed when it without his knowl- edge. Robbery, accomplished by force, “§ putting 797. when the use of or of person first degree.” injury person, robbery in robbed fear of some immediate to his in is degree. accomplished manner, robbery When in other it is in the second punishment robbery Sections 798 and 799 have to with the do in the first degrees, paragraph robbery by persons. and second and 800 covers two or more specification urged, appellant In treatment of the of error here devotes only portion leading application paragraphs, devoting major about three brief in contrast to the state subject, that, of its brief but accused does tabulate citations another, galaxy from one to have us with a confronted of cases of varied thought, robbery because theft and came about as the earliest greed problem manifestations and and sin of mankind. What makes the involved required that, pointed has so much research and concern been has the fact as Attorney General, early out this court in some cases made mistake citing applying decisions from other states and statements text- apparent investigation upon books without were of the statutes which those decisions unique wording defining that the based. would seem of our statute rob- bery compared as to that of sister states has not been examined nor considered.2 research, having statutory provisions We have done considerable of examined the every state, many decisions, bearing other sister as well as of their robbery.3 crime of Advertising robbery Georgia, in to the code definition of we do notice from the robbery that the examined crime is volume sion Code listed under the divi against property, against person. rather than of offenses offenses This many states, statutes, in in our other sister but Oklahoma so is quoted, heretofore classify robbery against larceny as a while is classified against property. States, App. 1074, See Neufield United as a crime D.C. noted, recognition Also to be in Oklahoma F. 2d there is a of a enormity robbery, (against person) which, of the crime of difference weapon dangerous used, penalty or a firearm is carries a of death State, 24 218 P. robbery Okla. where common law 2 See Johnson definition of approved. defining (a) robbery; applied, statute the common law states have no definition Eleven goods money Jur., p. 139, "the felonious 46 Am. value from stated putting (Italics supplied.) will, by presence, in his force or another or fear.” person of taking” (b) phrase statutory “felonious states use definition. Nineteen taking” "taking (c) phrase use the "unlawful of the states The remainder force violence”, etc. "wrongful talcing”, Georgia (d) phrase Dakota use the and South a defini- Oklahoma though different, comparison merits studious with quite Dakota, tion, Oklahoma and South , quoted hereinafter. . years robbery penitentiary. down to not less than five labor in the hard involving dangerous weapons, degree, provides the first for not less years possible life, robbery than ten with maximum of in the second degree punishable exceeding years penitentiary. ten Tit. 21 O.S. 1951 hand, §§ penalty grand larceny (where 798-799. On the other the maximum might exceeding stolen) years, hundreds of thousands dollars is not five larceny ranges twenty years. while of motor vehicles from three to Tit. 21 O.S. §§ apparent great 1701-1725. It is therefore at once difference punishment prescribed robbery partic- must be for in the accounted case ularly by robbery by dangerous weapon, in the ease of means of firearms or other great injury reason of the ‘likelihood and chance or death to the perhaps by suffering dignity thus robbed and and the violation of civilized reason of the of affront human to forcibly standards, which has come more to notice might as civilization has advanced. This be an instance where concern has been attempt safeguard rights by manifested in favor of and an made to human preference property rights. personalty over For the value of the taken in significance. is of no pointed state, nearly adopted As also out all of the states which have statutory robbery, they merely adopted definitions of have form the (and appears definition as it existed at common law from our research it part varying even for most the states with definitions have embraced full the pronouncements of the courts of states with the common law definition of robbery) property; courts, and define as the “felonious" and the seen, as we have have term held involves the intent to steal and to de- prive robbery permanently property. usually the owner But it has been held that compound larceny, aggravated larceny and, therefore, form of in- larceny all of the elements volves of the crime. And it has been held that ais “necessary ingredient robbery”, degree of the crime of of the offense of larceny may and that it is an included offense a conviction for robbery. Dunn, 811; State v. had under Pace, 129; 66 Kan. State v. 484; McDonald, 174 La. 140 So. State v. 89 N.J.L. 99 A. Commonwealth, Ky. 414, 981; Elam v. 116 S.W. 2d Southerland v. Ky. Commonwealth, 94, 1051, 217 288 S.W. 1053. particularly state, Our attention has been directed to the in fact that this expressly however, larceny offense, that this court held is not an included upon charge robbery may larceny that a of the defendants and not be convicted of person. State, 330, 955, from the Marks v. 69 Okla. Cr. 102 P. 2d 959. that these matters must receive We conclude serious consideration in the interpretation provisions compelling of and our receive attention in our arriving subject; important at a final and that also conclusion in such the rule in this state examination is the fact that an provisions is that while the definition of by by (as an offense statute but not it act made defined case as to some larceny statute, may cited) as shown in case hereinafter be by law, State, § to the common Tit. 22 ascertained reference O.S. 1951 9. Sneed v. 96, 1245, by P. 2d that statute there are 61 Okla. Cr. no common-law crimes jurisdiction, that in this in The truth is act is a crime Oklahoma. unless made by by statute, is defined statute so and where such definition must be than the law or some other definition of relied on rather common the act so 21 O.S. 1951 2. The as a crime. Tit. circumstance that the classified definition definition, standing alone, majority difference, can make no differs from this in the as Legislature by the solemn act of our is bound such act is with validly prerogative not, seem, and enacted. We are it would constitutional contrary meaning liberty known, a to the well to to word usual ascribe and recognize though, principle ordinary meaning, meaning of we course that it, and tbis court may enlarged by witb used in connection tbe words a word be Legisla tbe of the primary tbe intention is that rule of construction said that “a bas * * statute, meaning ordinary of tbe words are *in tbe is to be found ture they used, tbe to and of evil tbe in view of connection construed 616; 613, 223, v. Sand P. 2d 71 Okla. Cr. remedied.” Couch v. Kingfisher 438; 228, ier, County Grimes, Board of Commissioners 226 P. 2d 93 Okla. Cr. 219, 182 P. 897. 75 Okla. v. of instances where tbe are aware and conceive circumstances We can expanded “wrongful” witb which used meaning in connection of tbe word 452, Cook, Grocery Miss. Hasson Co. v. See “felonious”. as to include so synony “wrongful” ordinarily “felonious” are not tbe words 2d 791. But So. any dictionary. Tbe equivalent terms. See other or convertible to each or mous “unlawfully” “wrongfully” and Supreme as to tbe words of Indiana so held Court 183, 582, .Ry. Payne, That Louisville, 2 N.E. v. 103 Ind. E. & L Co. St. principle is of interest. defining statute, 13.2601, stated, bas, (that rob- SDC Dakota South defining provision) esotortion as like ours bery bas a statute as our Oklahoma by wrongful obtaining property bis another witb consent induced from “tbe use of wrongful been Tbe word bas defined tbe 13.3901. fear”. SDC force or construing statute. In In re tbe extortion Supreme Sherin, of that State Court 801, 1913D, 446, 761, L.R.A., N.S. Ann. Cas. it 130 N.W. 27 S.D. held: solely ‘wrongful,’ relates to tbe method as used section “Tbe word may guilty extortion under sections he obtains used; means, though any money be does not seek to obtain unlawful another from money property himself, or tbe obtained fact and believes benefit obtained; being belongs strued or for whom it is tbe term ‘extortion’ con- to tbe knowledge possessions from a bolder desired force mean ‘to obtain by force, menace, duress,’ compulsion; from another etc.” to wrest argument gist is that tbe common and effect defendant’s law defini Tbe state, principles robbery applies applicable in this and further tbe tion nothing apply larceny larceny more than eases person.4 cites, therefore, larceny Accused tbe two fear from cases force State,5 jurisdiction, v. 67 Okla. Cr. Saferite 93 P. 2d this cases, course, Hughes 65 P. 2d 544. These involve v. entirely statute, 1701-1725, §§ interpretation different of an Tit. 21 O.S. 1951 tbe statutes, quoted. prin- as defined heretofore that of People Levan, 341; see 295 N. this Y. 64 N. E. on interest 4 Of E. 2d 488. 46 S. State, 203 Ga. Nelson Hughes larceny law set out the Saferite cases with principle of reference to 5 While expressions larceny proof of this court to the effect that the uniform involves with is in accordance agree taken, deprive we the owner are inclined to permanently with the intent to of an glaring it would appear out that in the Saferite case that we General, points who have a Attorney application recited, of the law to the facts improper because the author of the example of opinion substituted actually as a this court for trier the facts and the conviction was facts, rather than law. on reversed prosecuting evening developed driven witness had to Barnsdall The evidence attending lodge meeting. he conveniently car while parked his Saferite and an ac- had discovering key it, leave car and had been complice the car owner left saw departed of the car and immediately take with it for Bartlesville. proceeded following day until not locate his vehicle when car could with the assistance owner wrecked near Bartlesville. Saferite and appre- was located his co-defendant it charged the officers larceny automobile, interposed of an and the defense was that the de- hended fendants go only car to to Bartlesville to see the They wife of had taken Saferite. claimed attending they back Barnsdall They started and had the a^dance accident with the car. after though deprive car, permanently owner of his intent did From it. disclaimed the facts case wrec^c as a held that the -State matter of law proven it was had not made out a case and the and ordered dismissed. was remanded appealed involving larceny cited, are one of interest State, Carroll cases v. 50 R. Further Tex. Cr. Rep. 851, 426, 14 Ann. Cas. 859, admittedly 123 Am. where St. accused 485, 98 S. W. stole a horse pursuing § 999, And see 32 Am. Jur. 930-1 and 52 escape S., Larceny, officers. C. J. 150, p. to cited appellant.

245 applied to the ciple have to seeks from these two that accused evolved cases case, syllabus as paragraph in the Saferite is within stated in one case follows: deprive temporarily the personal “Any taking property to intent with the larceny, same, is thereof, but not constitute then to return the does owner trespass. ently perman- intent, must he to the In to a felonious order constitute supplied.) property.”6 (Italics deprive owner of the the clearly supporting point in are that Defendant does cite several Texas cases 294, Galloway State, position R. 71 S.W. v. 126 Tex. Cr. In here advanced.7 871, developed another in that case and the defendant evidence that 2d drove his automobile and the gun point prosecuting witness, posed at took up officers behind the prosecuting put on out the witness its load of beer and later recognized highway, he the robbers the after he advised driver that the the car abandoned Later officers found knew that were not officers. key switch, been removed. of the car had but the contents with conviction robbery prosecution “In for held: was because court reversed appropriated automobile, charge that, was to automobile refusal it, guilty, only temporarily held was not sake of the beer in error under the evidence.” v. the late of Woods to case in the within calls attention The State ease 644, State, 457, 1949, R. 220 S.W. 2d which held: Tex. 153 kept gun at of loaded from salesman who took billfold “Defendant salesman, driving and who stolen hours while automobile it several contents, guilty finally removing without abandoned automobile with billfold robbery by assault.” 334, quotes State, Tex, from Brown v. Cr. R. We note that Woods case 265, 266, where the said: 136 S.W. by having gun party up, put fear his life is held “Whenever * * * gun party property, presented the him and the with the takes at complete.” offense of is State, quoted approval Aughton v. Tex. with is Cr. R. Also 196 S.W. 642, 643, where the court said: 2d necessary aggravated species "Robbery of theft. to was not is but an away complete property If he he order to offense. that show carried although it, property possession, he later abandoned of- to reduced the fense would * * * complete. complete The offense nevertheless is into as the an is taken result assault and with when the appropriate.” to intent heartily principle are in accord with the above of law in the while we cases, Aughton discover, however, Woods, Aughton we that Brown and rehearing approval granted quoted so Woods ease that case therein conversion does mission of a certain 450, 104 P. Root v. gun was intent an circumstances be submitted to out intent In State doubt the point an while In favor of defendant's (17 denounced, provide in order R. of state even in C. automobile permanently Supreme Cochrane, L., p. 106 P. Ala. it funds act larceny where sustain 24) criminal or fraudulent 1022, 42 Court merely 51 Idaho hy there deprive he 25 So. 2d one a conviction larceny contention of Alabama is committed to the rule are L.R.A., N.S., having possession escape officers, jury. ordinarily exceptions, without owner; for the information to we in the case citing find intent 601 and regard it where, Kennedy thereof to his own use. State v. held interesting at note. an it is said: bar.” example, element intent, allege, could “Since the statute intention 208 Ala. intent statute fairly the crime of or the state to not be if the to steal must under all late is it may thus the essence 93 So. Alabama accused takes declare grand larceny designates (C.S. Ross, unless prove, case 55 Cr. With 8191) there com strength holding Galloway case, Aughton supra, the of the in and it was the rehearing permitted though (even case on evidence to determine the deprive held error not to have the the taking pocketbook by firearms) also showed in that case of a force of question permanently of whether or not the was to the victim of the in of view the later abandonment. And while Aughton, the Woods ease is a later case than the we are unable in view of the similarity developed case, give weight favoring of the facts in each to to it as the position Attorney purport of the General. This case does not to have overruled Galloway the case. get problem by reviewing We would the with now the contentions of the Attorney General. He contends that under consideration must be very wording adopted by decided a consideration of the of the statute our Legislature interpretation and not from the of other courts of statutes with dif- wording. presents problem simple ferent This from the tha,t fact our robbery particular respect definition of to be seems different in a and material every except Dakota, from that of and South Dakota Comp. state in the Union South and both Oklahoma adopted defining robbery Territory, their statute from Dakota strong Laws Dakota 6481. There is evidence that the statute may originally by great Dudley have been worded David Field.8 or at least by sought prepare his committee that laws, to and have enacted a code of both criminal, York, civil and adopted great of State New and which was in part by Terirtory.9 by Dakota many And from time to time in modified form of quality the states of the Union. of the work of Field and his com- Committee, prefer mittee easy way (although and the Dakota we to believe this is not the get deep water), by out and will inus that it was not or inadvertence by wording scant consideration or bery defining omission that of the statute rob- Territory finally adpoted was as in by Legis- enacted Dakota as lature, quoted. and heretofore find, We as asserted case in South Dakota in which Originally, however, the statute has been construed. the statutes of North Dakota statute, contained the same definition of as our own and in the case of Fordham, N.D. 101 N.W. 888 in decided at a time when such original force, Supreme definition in spite Court of North Dakota in of wording the difference in the harmony construed the in statute with the rule prevailing taking” in the other states where the words “felonious are used in (in place “wrongful taking” the time statute actually words as used at the statute) “wrongful in taking” the Dakota and held the synony- words to be takiDg”, contrary comparative mous with “felonious which is to in definitions dictionary lay examined, legal, simple reasoning. that we have or or of We discover that in 1904 the Code Commission of North Dakota revised their statute on “wrongful” to use the originally word “felonious” instead phrased. So, of aparently there placed must have been doubt as to the construction on the statute (as originally worded), the statute as Fordham, supra, State v. and hence the revision to conform to reason. interesting concerning very 8 A article Dudley oí activities David JTield in liis efforts adjective, codify laws, both substantive and civil and criminal, and his efforts in behalf XVII, Report American Bar is contained an article in Vol. of the American Bar Association Biography, Dictionary 1894. See also article VI, American Vol. Prazer, Echols and Scribners. reading, Territory Dakota, See the Revised Codes of 1877, p. A.D. Preface, V of part: origin its “The Code of Criminal Procedure had its York, in New and it adopted was revised and Cali- abridged substantially present subjects, fornia. was enacted in form, but on certain supplying Assembly parts eleventh session of the vised omitted, before and the whole code is thus re- according legislation * * * enlightened examples to the latest and best in the most states. Codes, “The Revised now printed, enacted and very save a unimportant blemishes, few and legislation are believed to embrace the best results of country, in this express and also to weight judicial enlightened learning judgment. of the latest and most In them territory, or heritage state, changed public the future conversation and the has an intelligent invaluable which should only with general integrity preserved which should be fidelity.” conscientious statute, Georgia Code indicated, find, We as heretofore footnote seems not 26-2501,comparable statutes § only Dakota South to the Oklahoma and construing wording cases and of to be a but reason statute definition it, also of It reads: classification. fraudulent, wrongful, violent Robbery “§ _ is the 26-2501. intimidation, or force money, goods, another from the or chattels carrying taking, snatching, or owner, the sudden or without the consent anything or away any money, goods, chattels, the owner value from person in owner in possession thereof the consent or control without thereof.” or control construing of Rutherford was in the case above statute it find that in We State, 1936, 442 held: 183 Ga. 188 S.E. language charging of statute robbery prosecution offense “Indictment steal, allege with intent is not demurrable for failure (Code implies steal intent in statute ‘fraudulent’ as used since word §§ 26-2501,27-701).” language of spite in the an that indictment But in of the court’s conclusion thereto, statute, quoted, a demurrer to withstand heretofore was sufficient further held: the court in the same case language defining robbery robbery charge of statute prosecution, in “In although insufficient, stating intent to steal is be with must without whether error, depends charge on circumstances reversible failure to so constitutes particular of case.” developed pointed be the issues would out that the circumstances The court statement, any. evidence, if the defendant’s 684, State, 1896, Sledge go early 26 99 Ga. S.E. of v. to the case We must back inkling subject get exposition into the 756, on the where we find a fuller contained, reading interpolation therein process words not into the statute of statutory definition, up spite with the common whereby of its simple. ended court robbery, pure and the court: Said law definition Code, robbery, expressed Penal section 151 “The definition intent as a omits the felonious [26-2501] is for want of fullness. inaccurate in the as much involved The animus furandi is element of the offense. constituent necessary larceny. robbery It is as of a as in the commission commission of be without to robbery proven alleged There be no in the other. can in the one case as judge legally impossible steal, for the trial an intent to and hence it is robbery upon jury give which the trial of ease instructions correct entirely question It is not one of those felonious intent. out of view the leaves only required concerning to instruct is matters collateral offense, very jury upon request, so an omission substance of the but it is of the finding jury without enable them to convict the accused would to instruct felonious upon questions repeatedly that class of ruled that intent. This court judge jury request.” without the trial should instruct robbery is involved and well where the definition A late considered case Moyers State, 1938, 197 S. E. 116 A.L.R. v. 186 Ga. is that of gather highly regarded jurist, opinion. Graham, We wrote the Justice precedent long law but that the common line of there is no doubt reason of the definition lacking Georgia; robbery prevails if is the “animus furandi” robbery. taking, there can be in the defining robbery very Minnesota statute its the State We find except “wrong- statute, the term “unlawful” is used where we use to our similar 249, 250, Bruno, Supreme Minn. 169 N.W. Court of v. In ful”. State robbery construing statute had for consideration a ease where its Minnesota bludgeoned developed removed that the accused had his victim and the evidence they money person. if was instructed that believed this evidence from his body opinion: they acquit. court, in the false must Said the intent to steal was an essential the court should have “It is said necessarily intent an element of element of the crime. Criminal Quackenbush, 953; statute. v. 98 Minn. 108 N.W. State v. defined State Sharp, Minn, 381, 526; Damuth, Minn. 141 N.W. N.W. 196. State The statute in terms make intent a element in the crime of does not robbery robbery. Whether intent is ever an issue on a trial for we need not deter- charged by committed, mine. If the there acts state could be no issue necessarily robbery.” intent in this case. Such acts constitute find no further Minnesota We eases above stated. Supreme While Court Missouri has held that steal, O’Conner, must be with intent opinion Mo. 16 S.W. Smith, Sup., 696, 698, of that court State v. Mo. 68 S.W. 2d is of in-

terest, and would seem to refute the idea that animo furandi in the is involved involved, necesssarily definition of the be submitted to the “steal”. Or if that the must word jury. part: It is said in assignment appellants’ error “The last does not sustain the of first degree robbery by deadly dangerous weapon, of a if use ‘but the evidence anything all, only showed it and it at most showed tended to show that defend- got automobile, did, purpose escaping ants into in fact said sole jail, the owner thereof.’ purpose stealing by permanently depriving and not for the said automobile preceding paragraph “What we have said shows that the evidence degree by dangerous to constitute sufficent first the use of a deadly weapon, as this crime is defined sections 4058 and 4061 R.S. 1929 (Mo. 4058, 4061, pp. 2856, 2863). §§ Ann. St. ‘taking person, presence, “It is the of another from his or in his will, by person, by putting violence to his him in fear of some injury person’ degree. (Sec- immediate to his that constitutes in the first 4058, supra.) tion think the We of the automobile was done with the in- depriving permanently, though they tention of the owner even later abandoned it.” Supreme allege Court of Missouri has further held that the failure to property deprive the information that the thereof, was taken with the intent to the owner Medley, 925, 633, is not fatal. v. See State 353 Mo. 185 S.W. 2d 634 and cases cited. Phillips, 656, 418, 420, Supreme In v. 62 Idaho 115 P. 2d the Court of extortion, corresponds Idaho had occasion to construe their statute on to our extortion In which also statute, 1481, “wrongful”. § Tit. 21 O.S. 1951 and uses the word opinion part: the court said (Sections 519, Code) “Our statute and statute 518 and California’s Penal are construing Supreme state, the in In statute the same. the California Court that People Beggs, 79, 152, 154, question v. 178 where Cal. this identical was presented, said: “ employed denounces, and, though purpose the law ‘It is the means which may just arising by a indebtedness from be to collect and created the criminal prosecute wrongdoer, is to act for which the threat it is nevertheless within contemplate process inhibition. law does the use of criminal collecting process purpose is, a To invoke as means of as held debt. such for the named authorities, contrary public policy. good faith, all Hence or the accomplished by rightful, end means is fact that the such cannot avail one as a prosecution, defense in more than such such facts would constitute a defense

249 injury compels payment just an unlawful the threat to do of a debt where one to the of his debtor.’ “Continuing: “ support interpretation able and ex- in an finds full of the statute ‘Our opinion Supreme entitled In re in a case Dakota Court South

haustive 1913D, 446, 761, L.R.A., N.S., Sherin, where Ann. 40 Cas. 27 130 N.W. S.D. provisions court, having with sections identical under consideration code ‘wrongful,’ Code, 518, statute, result used in the Penal said: “The word and 523 of our justness question of the ultimate to the has no reference whatever ’ ” sought, solely results.” such methods used to obtain but relates to the affirming “in P. 2d where Norris v. forcibly kidnapping of a motor taken of one who had conviction vehicle and seized life, against property ‘demanding his with threats the motorist his extorting money against purpose carrying away will for the him his and Malendrez, People ”, approval quoted from him’ App. said: P. wherein that court 2d Cal. pre- possession of automobile that motorist was removed “Evidence life, returning until after threats thereto force and vented from defendants departed, key authorized conviction had removed from ear and allegedly notwithstanding nothing robbery, kidnapping purpose was that key taken but to the automobile.” 836, 837, App. 459, People Sheasbey, a dis- In Cal. the case appeal appeals where de- had for consideration of California trict court procedure robbery kidnapping, a of a dual fendant had been convicted principle proper state, apparently in the within case as where the involved robbery kidnapping applied are that case discussed as to each prose- forcibly repossessed property brought cuting sold to to focus. Accused had ropes witness, process and had him and his wife with resistance to had tied taking, nearby prevent had then hauled witness to a town to him. released robbery statute as the California as to the The case was reversed taking taking with force requires was held that must be “felonious.” It that the supply robbery; the “felonious” that to sufficient to constitute and fear was not element of the statute, essential ele- animo furandi was an the intent to steal or ment. statute, comparable provision kidnapping Nevertheless, construing as to the found. It was determined statute was term as contained kidnapping away taking carrying purpose was or motive of the statute that urged kidnapping nothing pointed as a out that as to the immaterial. para- except in the tenth Said the court of mind or motive alone. state defense syllabus: graph of ‘kidnapping,’ part as defined of crime or belief is state of mind “No charge, and, Code, where no itself defense nor constitutes Pen. excuse, proven a lawful no intent would constitute are circumstances necessary, doing except statute.” denounced intention of acts 3) (quoted in footnote law definition the common Under furandi; is, goods taking animo essential it is permanently deprive owner, it taking intent to take and felonious be with for consideration. Proof be submitted such is essential of the go sufficient, but the State must further and show that is not alone taking, temporary and that the intent at the time of such goods permanently. 143; Jur., deprive 46 Am. See owner of the towas 250 Guffey 1138, Casualty 1098; Co., 61, v. Continental Ann. Cas. 21 109 Kan. 197

note; Galloway State, 294, v. 126 Tex. R. 71 2d 871. S.W. Cr. larceny, seen, In the ease of have been as we have our statutes construed by this the court on to rule that numerous and we are the occasions committed taking deprive furandi; is, permanently the must be animo of to the victim goods State, supra. State, supra, Hughes stolen. Saferite v. v. pointed We have also out between various cases the distinction dangerous larceny robbery (particularly weapons offenses of and of not where used) very close, distinguishes is often and that criterion these offenses precedes taking. State, is the 10 71 violence which Kernell Okla. Cr. 287; 955; State, State, 2dP. Marks v. 69 Okla. 102 P. Cannon v. Cr. 2d 809; Okla. Cr. 2d fail 107 P. Randall 33 Okla. P. 983. We find, indicated, as heretofore this defini court has ever construed our robbery, compelling tion of Tit. 21 O.S. 1951. There would have to be rea adopted for its sons cause us to reconsider a rule heretofore if there basis adoption. Paragraph syllabus one of the in Johnson v. by defendant, to, adopts heretofore cited but referred effect statutory any discussing way law of common definition without ‘robbery,’ It definition. is stated: “To constitute must in all cases accompanied intent, furandi; with a felonious or animus in the intent must be to appropriate larceny.” property likewise as phrase, course, that, by Supreme is a “Animus furandi” Latin of as stated Virginia Commonwealth, 615,1 generally of Court in Jones v. S.E. Va. “is steal, intent, feloniously as intent a translated prive criminal or an intent de- permanently property.’ phrase the owner of If use we must a Latin why acpiendi” (the possidendi” (with possessing), “animus intention of or “animus capture) simply take intention to or ? Animo means “with inten- necessary does not tion.” Our statute in terms make intention element of robbery. that, quoted: “Robbery wrongful The definition is as heretofore is the property personal another, of of from his presence, will, accomplished by immediate means of force or fear.” explanatory quoted, are There including further definitive and we clauses that have also herein, provision the statute of but classification involved the above key problem. “wrongful” is the to our seem from would the use the word is more that our definition limited than the common law definition and that no except doing intent is intention the act denounced the statute. “wrongful” imports infringement right, The word its terms the of some “wrongful taking” personal property against would seem to be possessor, accomplished by robbery. of the and if will means of force or fear it is infringement right state of belief No mind or is involved. It is the wrongful, something makes the act more value than is involved. — in the Johnson case are such as could have from plot. The facts come a John Steinbeck (husband wife) $5,000 withdrawn Two of the defendants their had a bank about and hidden it away premises; trip .Army was to be to the east the husband to see a son who was in an nephew wife, practically raised, whom camp. apparent A she had some other ne'er-do-well money premises. money knew that the was about the home, relatives husband back but the nephew disappeared. convinced money did not know was that the What the marked. The defendants prosecuting gotten get money, witness had tried the officers parties questioning it, the help apparently unsatisfactory perfunctory but law to recover some the was got being money the net result. losers of the reinforcements, apparently relatives, So other camping prosecuting witnesses, after the abode of the near broke in on them and force and vindicating retrieving practical way, in their suspicion handled the matter fear the wife’s her using nephew's wife, pocket petticoat bank, of her who was skirt aas $1,100 of the marked bills. The defendants had taken the law into their own hands. There was savings possibility by people But this was the life paupers mistake. these who were made ungrateful nephew. was a defendants, This crisis life and favorably to them was problem This the solution of matter life or death. court facilitated de- fendants, definition interpreted common law use of the definition many courts where adopted. Our definition was overlooked . right nations, violation of that fundamental so in free It is the much cherished life, liberty pursuit happiness”, rights “of and the and where such are violated employed respect stated, coupled with violent means and method makes the therefore, robbery, by are, defined, so far our statute. We act recited com- pelled State, supra, purports adopt to overrule Johnson v. so far as it the com- syllabus. expressed paragraph mon law definition of one of its though conclusion, truly easily by any is our arrived at means. But we Such legislative provisions efficiency are and would not convinced an examination that the sufficiency statute, 791, precludes § of our definitive Tit. 21 O.S. justify reading in of words and defintive clauses not in the statute contained. “robbery” by In the instant case the was that classified Tit. O.S.A. 1951 801; point gun; being pursued by officers, it was at the of a defendant was accompany pleas victim was forced to unavailing. the robbers and his to be released tales”, indicating He was told that “dead men tell no that the victim capture. and his car were to be used to the ultimate effort to elude It is thus might oil, rough to assume that this car run low on its reasonable value from the might usage river, might deep be reduced to nil. The car in fact be driven into a lake or escape would, if such would facilitate and detection. There even if an place only distant, exposure abandonment should take a few miles be a reckless to loss. taking The defendant stated on trial that his intention at the time of only escape temporarily to use the If car to officers. he could use the car jury question guilty have the and be entitled to consider such and find him not taking only temporary deprivation, many days if the for a how hours or car, mile, hundred, he use the how far could could he drive it? One one any or ten thousand or more.? Would it make was worth if at the difference time the car by damage $4,000 rough but reason of the use and sustained it was only finally repossessed? might worth or $500 when Because defendant have $100 along escape destroying used other cars that he would not causative factor the route of without them would not mean very by destroy force of circumstances involved or be theory temporarily in the destruction of this vehicle. Such analysis any point the most causal is to show how far from it be can ad absurdum. reduced principle An with the contended for would tend to weaken and des accord troy death, law make all liable to and order and citizens humiliation or at least irresponsible danger the whim of the a loss in the value of their ous could tion to resort at escape gangsters, criminal, and facilitate the murderers or other expected disrespect protec for to lead to law and force the citizen for personal say to drastic action. To defendant did not only trespass by robbery, temporary necessity but the reason of the commit apparent rejection make element of such definition of animus furandi is to valid reasons for the argument. many an We cannot believe that courts with the common law so hold. would (luring long Interpretation noticeably calamity say common law such has failed To juries disregarded doubt that most have no the excuse that develop, overlooks the fact of to gun eluding just purpose only point, example, officers, or vehicle at a motor just go joy riding, train, boat, plane, or or visit nearby a friend make connections w!th definition, would be valid under the common law city, all of which excuses if believed. distant jury- overwhelmingly might question true. But the fact that such is submitted the excuse gun permitted escape persons prac past has many instances in the rendering right valueless, personal property, question and then reason of the tically have jury, making lawyer, the services of adroit and brilliant criminal the ef decided history practice officers seem ludicrous. The the law enforcement in each state forts of full of illustrations. in each decade Is noted, given charged As we have the instructions included statute, 801, supra, words of the Section and the term was as defined statute, 791, supra. prevails Section Even where law rule it has the common been held that where the robbed was authorized to convict believed defendant another, imported such was sufficient as the word “rob” the intent to steal (the meaning). Baygents common State, law See v. 154 Miss. 36 122 187.12 S. And in this case it is our further conclusion that the statement of the de deny fendant on trial and his failure to the evidence of the State as facts robbery, him, of the if the requested would not have entitled to the instructions even robbery prevailed State, common law definition of in this because such temporary taking facts refuted the intention of to the extent that the court was justified refusing requested. as matter of law principle the instructions conflicting involved is the same as is involved where the evidence is as to whether may participated committing not a witness have the crime accomplice. Ordinarily question was therefore an would be one for the jury, admitted, but where the facts and the conduct of the witness are it becomes Cudjoe State, of law court. 12 Okla. 1251; L.R.A. 1916 E. 519; Moore v. McKinney 14 Okla. Cr. 201 P. 673. complained of, Our conclusion is that the instructions considered as a whole, sufficient, by give and that the court did not err failure to the requested. instructions finally State, having by way impeachment, contended that “The upon defendant, previous convictions, elicited cross-examination of evidence his permitting presently good the court erred in not defendant to show that he had reputation suing veracity place pur- for truth and at the where he lived and had been period years, for a of more than ten a course of lawful conduct.” And that support judgment “the evidence is insufficient to of conviction.” reputation accused, competent It is fundamental that the of an to be for the jury, preceding of a must relate consideration the same. There had been to the time of the crime and times years delay trying the defendant for the crime charged, prevented and as we have seen running the circumstances recounted the charge. of the statute of limitations as a bar to the The contention that since charged the date of the crime the accused had reformed and at the time of the delayed acquired good reputation peaceable, law-abiding citizen, trial had as a bearing could have no robbery. issues as of the time of the admitted armed deny upon The state its brief does not but that it is true that an attack credibility may proper proof the of witness make the introduction of to show good reputation veracity, pointed for truth and but it is out that the record large part in this shows that a prior case of the evidence as to the defendant’s first criminal record was elicited him his own counsel on direct examina- right and for reason the strengthen tion such defendant would not have a to testimony eyes jury by showing good of the reputation that he had a veracity. Further, concerning depositions for truth and not admitted (1951), (something) in the Thorndilce one; Dictionary Steal is defined and Barnhart "1. take " belong get * * * dishonestly; money. does not Webster's New International to take steal that And Take, secretly, or do Dictionary says: take, "To carry away, feloniously; to take right wrongfully; goods leave, keep with intent as, without other." But to personal to steal of an- daring; "felony" Wickedness; baseness; is defined as: "1. treachery; deceit; wrath; goes a crime or sin." Webster on to state that felony the word homicide, rape, covered larceny, burglary, according treason, arson and Blackstone, but in modern "any times it is that is offense punishable by penitentiary, death or confinement in the prison." or State § 5, See Tit. 21 O. S. 1951 However, which accords. courts have "felony" read into the definition of applied animo furandi as robbery, read also have animo furandi into the definition of steal, —and hence conflict statutory provision, with our not with the usual definition of applied steal as robbery, but furandi, the extent of animo that has courts been added. reputation subject, evidence on the each instance the defendant’s veracity abiding coupled reputation peaceable truth and with his as a and law citizen, agree. wholly incompetent. and that the latter was We Einding support ample of the evidence record to contentions state and support jury, apparent of the verdict and it further lenient, mitigation was most and without doubt treated in found guilty of, delay long the defendant fact of trial and the release of accused Texas, perhaps extenuating from the life sentence in other circumstances. punishment This is evidenced the minimum assessed when death electrocu- might except honoring by tion could have been meted out and have requisition by Governor of Oklahoma of the disposing the Governor of without first Texas pending at time in this State. The accused has fared lightly enormity of the crime. view judgment appealed

The verdict and is affirmed.

BRETT, J., JONES, J., concur. Rehearing.

On defendant, by Braeewell, Houston, PER CURIAM. Counsel for Hon. J. S. rehearing. petition given Texas, filed a Each member of this have argument petition presented arresting one, The deliberate consideration. authority, except applicability. we find no fault with the citations of court, attempted opinion, is the that this as Overlooked fact to be stressed Legislative robbery, has never before noticed or considered our definition of Tit. apply classification, § must to the statute of Tit. 21 O.S. O.S. way 1951 801. Johnson subject Okla. Cr. treated here involved. It is evident that the definition was overlooked. true, probably seen, it is because as we have that it is at variance with the practically every Nevertheless, definition in other state. it is the solemn act Legislature, supported by good our research seems to be reason. complaint properly felonious, described the act because rob- bery felony, justify reading does constitute a but fact not does into “felonious” in the Section 791 word sense as used in the common law robbery. complaint definition of information Other words and terms used in the required by 801 of Title Section O.S. and Section 791 only surplusage. be treated of Title 21 O.S. can fact the use any right prejudice deprive the defendant of substantial could him in manner. history of this other time in the court we had a situation At one reading mistake we had made the into a a number of old eases statute words meaning justified by actually used, therein words contained long in, although acquiesced proceed we saw fit to correct the error and Legislature. statutory provisions provided strictly by parte our Ex See Lewis, P. 2d 367. And see on the reasonableness and sane Eighth Benjamin Annual of action the Cardoza Lecture of such kind de ness City Bar of the New York the Association Associate livered before Supreme Douglas Court the United States on William O. “Stare Justice Decisis” Association, reported of the Oklahoma Bar in Vol. Journal dated point quoted page pertinent 2d, 25, 1950, February Roberson So, 414. even if it could be said that v. Johnson 91 Okla. State, supra, law definition of the common had been read v. statutory 791, supra, still, by definition, authority Section of the above into our plain adhering unambiguous justified definition of would we still Legislature. robbery prescribed paths tooWe Lave wandered down side and considered whether or not our might many legitimate successfully definition eliminate the defenses interposed past robbery by where a use fire- involving persons pursuit arms or force and fear and of their own stolen property, writs, etc., or officers under void and we do not visualize respect opinion elimination defenses other than treated in the ren- go arguments surrounding hypothetical urged dered. To into the eases would constitute dicta. argument presented points The further other raised will receive jurisdiction long further comment as those issues have in this been settled. application rehearing overruled, mandate issued. ordered parte Ex BARNETT. No. A-11859. Jan.

(252 496.) P. 2d

Case Details

Case Name: Traxler v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Dec 10, 1952

Citation: 251 P.2d 815

Docket Number: A-11586

Court Abbreviation: Okla. Crim. App.