Wilson v. State , 28 Okla. Crim. 102 ( 1924 )

It is first contended that the trial court erred in overruling the demurrer to the information. The charging part of the information is as follows:

"That the said W.K. Decker and the said Homer Wilson acting conjointly and together, in the county and state aforesaid, on the 5th day of February, 1921, did knowingly, willfully, unlawfully, wrongfully, feloniously, conjointly, and together, make an assault in and upon one Claude Deshazo with a certain weapon, to wit, a revolver, then and thereby putting the said Claude Deshazo in fear of an immediate injury to his life and person, by threatening to shoot the said Claude Deshazo, and did then and there by use of said force and putting in fear, unlawfully, willfully, wrongfully, and feloniously, and against the will of him, the said Claude Deshazo, take, steal, and carry away from the person and possession of him, the said Claude Deshazo, certain personal property, to wit, one diamond set ring, one diamond set shirt stud, and $40 lawful money of the United States of America, with the unlawful, wrongful and felonious intent then and there on the part of them, the said W.K. Decker and Homer Wilson, to rob and deprive the said Claude Deshazo of the aforesaid property, and to convert the same to the use and benefit of them, the said W.K. Decker and Homer Wilson, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the state of Oklahoma."

In this connection it is first contended that the information fails to state the facts showing a conspiracy between Wilson and his codefendant Decker. This is unnecessary under the statutory provisions of this state. Section 2574, Compiled Statutes 1921.

Further it is contended that the information is fatally defective in that it nowhere lays the ownership of the property stolen. The information charges:

"Did take, steal, and carry away from the person and possession of him, the said Claude Deshazo, certain personal property, to wit, one diamond set ring, one diamond set shirt stud, and $40 lawful money of the United States of America, with the unlawful, willful, wrongful and felonious intent then and there on the part of them, the said W.K. Decker and Homer Wilson, to rob and deprive the said Claude Deshazo of the aforesaid property, and to convert the same to the use and benefit of them the said W.K. Decker and Homer Wilson."

It is not necessary in a robbery case to allege and prove that the property belonged to the party from whose possession it was forcibly taken. All that is requisite is an allegation that it belongs to some other person than the defendant or defendants. The allegations above set forth are sufficient in themselves to negative the idea that the property in the possession of Deshazo alleged to have been forcibly taken from his person was not the property of Decker and Wilson.

An examination of this information convinces the court that the acts constituting the crime are set forth therein with sufficient certainty to apprise the defendant of the offense charged against him and that it includes all the elements of robbery as defined by our statute, and that the trial court did not err in overruling the demurrer to the information.

Complaint is also made of certain of the court's instructions which were excepted to by the defendant. The instructions complained of have been examined and considered in connection with the evidence in the case. We find instructions to cover the law as applicable to the evidence, and are such as have heretofore been approved in cases of this character. The instructions requested and refused by the court were either incorrect statements of the law or not applicable to the evidence, and were properly refused.

It is also contended that the evidence is insufficient in that it does not show that the person robbed was at any time in fear of this defendant. The theory of the state was that this robbery was the result of a conspiracy previously entered into between this defendant and his codefendant W.K. Decker; that the purpose of the presence of this defendant in the barber shop at the time of the commission of the robbery was to aid and assist his codefendant Decker therein should the occasion require active participation therein by this defendant. The circumstantial evidence all points to the fact that this robbery was planned by the defendant and his codefendant Decker; that this defendant participated therein by acting as a lookout for Decker, and by locating himself at the scene of the robbery at the time of its commission. That this defendant first went to the barber shop that night and got a shave and then went down stairs, and in a short time returned to get a hair cut, is significant. His excuse for leaving after the shave, that he had taken medicine and had a pressing call of nature is evidently an afterthought on his part, because he admits that when he went down from the barber shop after getting a shave he stood at the foot of the stairs and talked for five or ten minutes with some one who was then leaving the barber shop. Evidently the jury did not believe he left there for the purpose of answering the call of nature, but rather to inform his codefendant that the coast was clear, and that everybody had left the barber shop but one small boy.

The inferences properly to be deduced from the circumstantial evidence against this defendant were for the jury, and this court has no hesitancy in stating that the jury reached the right conclusion under the evidence in this case.

The only semblance of error which we consider in any degree prejudicial to this defendant was the admission of the evidence of the details of the robbery previously committed by him and his codefendant Decker on one Hines at Bigheart, Okla. The fact of the commission of this robbery was admissible in order to identify this defendant, and to show his acquaintance with the defendant Decker, and to connect this defendant with the revolver used by Decker in this particular robbery, and as much of the details of the Bigheart robbery as was necessary for those purposes was properly admitted, but other matters of detail connected with the Bigheart robbery, having no tendency to establish the matters above indicated, were unnecessary and irrelevant to the issues in this case, but in view of the provisions of section 2822, Compiled Statutes 1921, which prohibits this court from reversing any judgment, among other grounds, because of the improper admission of evidence, unless the error complained of has probably resulted in a miscarriage of justice, and constitutes a substantial violation of a constitutional or statutory right, this alleged error is considered of not sufficient prejudice to require the reversal of this judgment.

The judgment is therefore affirmed.

BESSEY and DOYLE, JJ., concur.