Rhoades v. State , 16 Okla. Crim. 446 ( 1919 )

Counsel for defendants group the second and fourth assignments of error, and discuss the same together. Such assignments are:

"(2) The verdict is contrary to the law and the evidence."

"(4) The court erred in overruling the demurrer of the defendant to the evidence of the state."

Under these assignments, counsel urge that the information is defective, also that there was a variance between the allegations of the information and the proof of the crime of which the defendant was convicted, and for these reasons it is urged that the overruling of the demurrer of the defendant to the evidence was reversible error. The argument interposed, or rather the reasons given, in support of the assertion that the second and fourth assignments of error constitute grounds for reversal of the judgment of conviction, have no relation whatever to said assignments.

No demurrer was interposed to the information; neither was any request made of the trial court to instruct the jury to return a verdict of not guilty because of variance between the allegations and the proof. The information not being attacked in the trial court, it is too late to urge that the same is defective for the first time in this court. An examination of the information, however, discloses a sufficient charge of robbery in the first degree against the defendant, and had a demurrer been interposed, it would not have been error to overrule the same. There is no merit in the assignment that the court erred in overruling the demurrer of the defendant to the evidence of the state. The testimony of Truscott and Ermis, if believed by the jury, was sufficient to support a conviction of robbery in the first degree. Caido v. State,7 Okla. Crim. 139, 122 P. 734; Prather v. State, 14 Okla. Crim. 327,170 P. 1176; Bell v. State, 14 Okla. Crim. 167, 168 P. 827.

The third, fifth, and eighth assignments of error are grouped together and presented as one proposition. Said assignments are as follows:

"(3) The court erred in admitting over the objection of defendant incompetent, irrelevant, and immaterial testimony."

"(5) The court erred in refusing to instruct the jury to the effect that, if the defendant's only purpose was to recover money that he was cheated out of or lost in the game by fraudulent means upon the part of Truscott, they should acquit him."

"(8) The court erred in refusing to define robbery in the second degree in its instructions to the jury."

Assignment No. 8 will be considered first. An examination of the record discloses no refusal upon the part of the trial court to instruct on or define robbery in the second degree. Counsel for defendant made no such request of the court. Section 5905, Rev. Laws 1910, provides:

"In charging the jury, the court must state to them all matters of law which it thinks necessary for their information in giving their verdict, and if it states the testimony of the case, it must in addition inform the jury that they are the exclusive judges of all questions of fact. Either party may present to the court any written charge and request that it be given. If the court thinks it correct and pertinent, it must be given; if not, it must be refused. Upon each charge presented and given or refused the court must indorse or sign its decision. If part of any written charge be given and part refused the court must distinguish, showing by the indorsement or answer what part of each charge was given and what part refused."

From the foregoing section it appears that the trial court must instruct the jury on all matters of law which it thinks necessary for their information in giving a verdict. The court is not required to instruct on the law applicable to any degree of the crime other than that charged unless there is evidence which tends to establish a degree different and less than that charged. In this case the state's evidence established, if it established the crime of robbery at all, robbery in the first degree. The evidence on the part of the defendant did not tend to reduce the crime to robbery in the second degree, but the defendant interposed a complete defense to the crime; one which would justify his acquittal either of robbery in the first or the second degree. As no issue was presented by the evidence which tended in any way to reduce the crime to that of robbery in the second degree, the court was not required, in giving the law of the case, to instruct upon that issue. Fooshee v. State,3 Okla. Crim. 666, 108 P. 555; Inklebarger v. State, 8 Okla. Crim. 316,127 P. 710.

The fifth assignment of error is without merit. There is no evidence in the record that would require the court to instruct in substance on the matters assigned therein. The defendant denied entirely taking any money from the prosecuting witness as charged in the information. His defense was that the money was not taken by him forcibly from the person of the defendant, or by putting him in fear, but that he grabbed some money off of the gambling table, and that the money was not in the possession of the defendant.

The assignment that the court erred in admitting incompetent, irrelevant, and immaterial testimony is apparently abandoned, as the brief nowhere sets out in substance the testimony of any witness which it is alleged was erroneously admitted, as required by rule 7 of this court (12 Okla. Crim. viii, 165 P. x). As was recently held in the case of Bradshaw v. State, 16 Okla. Cr. —,185 P. 1102:

"Where counsel for defendant have wholly failed to comply with rule 7 of this court by incorporating in the brief `the full substance of the evidence admitted or rejected, stating specifically the objection thereto when the alleged error relates to the admission or rejection of evidence.' * * * this court will not closely scrutinize the record for the purpose of substantiating the defendant's claim."

In presenting alleged errors of this kind, it is the duty of counsel, as required by the rule of this court, to present the matter in the brief in such a way that this court may pass intelligently upon the merits of the question without having to search the entire record for the purpose of determining whether any error has been committed. Mixed questions of law and fact like this involve a very considerable time in making research where rule 7 of this court is not complied with. The numerous cases appealed to this court preclude, and the court is not required to brief these questions, and counsel should at least take time, where the burden is upon them, to present such questions as this in accordance with the court's rule, or else the court will be compelled to treat the same as practically abandoned, and therefore without merit.

It is also contended that the court erred in not granting a new trial on the ground of newly discovered evidence. The newly discovered evidence is contained in an affidavit, attached as an exhibit to the motion for a new trial and in support thereof, of one W.I. Ritchey, who states in substance:

"That he is a resident of Oklahoma City, and that, about two weeks prior to the time Grover Rhoades was charged with robbing B.B. Truscott, he, the said Ritchey, had a conversation with Truscott in which Truscott told him that he, Truscott, and Mosig were going to El Reno and `trim' the Rhoades boys; that Truscott showed affiant the daub and copping wax which he said he would use if he and Mosig could get the Rhoades boys to play black jack; they could cheat them out of all their money in a short time; that about a month before said conversation affiant had a letter from Mosig, in which he stated he knew where he and Truscott could get some money, and asked affiant if he knew where Truscott was at that time, and, if so, to tell Truscott Mosig wanted him."

It was clearly not error for the court to overrule the motion for a continuance on this ground, as the evidence was not material to the issues, and for the further reason that it was to a large extent cumulative, because the witness Mosig testified that he used the "daub and copping wax" and was caught cheating in the game of draw poker by the defendant, and it was apparent in the trial that the fact that Mosig was caught cheating resulted in breaking up the game and the taking of the prosecuting witness' money by the defendant. Motions for a new trial on the ground of newly discovered evidence are addressed to the discretion of the trial court, and unless the newly discovered evidence is material to the issues, and it is clearly probable that upon a subsequent trial a different result would occur because of such evidence, a new trial should not be granted. We find no error in overruling defendant's motion for a new trial on the ground of newly discovered evidence.

In this case the record shows that the verdict of the jury was returned on the 18th day of August, 1916, while instructions Nos. 13 and 14, given orally by the court, were not filed and did not become a part of the record in the case until the 19th day of August, 1916. There is nothing in the record to show whether the jury ever received these instructions in writing before the jury concluded its deliberations. Furthermore, the record affirmatively discloses that all the law given to the jury orally by the court was not fully covered by the additional instructions which were afterwards reduced to writing and filed as part of the record in the case.

It appears also that in the colloquy that took place between the trial judge and some members of the jury cerportions of the court's statements to the jury did not fully and fairly to the defendant state the law of the case as applicable to the evidence, and from the record before us it is apparent that the jury was to some appreciable extent misled by matters stated orally by the court which were not at any time incorporated into the written instructions.

Again it appears as a part of the discourse between the trial judge and members of the jury that instruction No. 9, which contained the only affirmative law covering the defense interposed by the defendant, was withdrawn from consideration by the jury, and two additional instructions submitted in lieu thereof; yet the record before us indicates that instruction No. 9 was thereafter attempted to be amended orally, and said instruction is incorporated in the record as part of the instructions originally given by the trial court, although amended by interlineation. It is apparent that, if the jury got the impression that instruction No. 9 was intended to be withdrawn from consideration the defendant did not receive the benefit of any affirmative instruction covering the law applicable to the defense interposed by him. The record before us as to the intention of the trial judge relative to the withdrawal of instruction No. 9 is surrounded with considerable doubt. Had the court left the jury with the instruction as first given, this court would not hesitate to affirm the judgment of conviction, because from such instructions the law of the case was fairly presented without substantial prejudice to the defendant's cause.

In the motion for a new trial the matters occurring between the court and the jury when the jury returned into open court for further information were set up as grounds for reversal, and acted upon adversely to the contentions of the defendant, and proper exceptions saved.

It is apparent to this court that in giving further instructions orally to the jury, the jury was misled as to the law of the case, to the substantial prejudice of the defendant, and that he, by reason thereof, did not receive that fair and impartial trial to which he is entitled under the laws of this state.

After a careful investigation of the entire record in this case, the conclusion is reached that the defendant is entitled to the benefit of a new trial in order that his ground of defense may be more accurately and correctly stated to the jury in the court's instructions, to the end that substantial justice may be afforded him.

For the reasons stated, the judgment of conviction is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

DOYLE, P.J., and ARMSTRONG, J., concur.