Cox v. State , 25 Okla. Crim. 252 ( 1923 )

It is first contended that the evidence is insufficient to sustain the verdict and judgment. While there is a sharp conflict in the evidence, if the evidence introduced by the defendant and his witnesses was to receive credence by the jury to the exclusion of the state's evidence, an acquittal should have resulted. On the other hand, the evidence as to the identification of the defendant by the prosecuting witness was positive, and supplemented as it was by the subsequent attempt of the defendant on the occasion of his arrest to escape and his explanation for being at the place where he was arrested at the time of his arrest, and the further fact that the prosecuting witness gave the police, immediately after the robbery, a detailed description of the person who robbed him, which tallied with the defendant, and also that defendant carried, when arrested, a pistol and search light like those described by the prosecuting witness before any arrest was made, all point conclusively to his guilt, and convince this court that the jury made no mistake in the conclusion reached.

It is well established in this jurisdiction that a judgment of conviction will not be reversed because of the insufficiency of the evidence, where the evidence is conflicting, if there is evidence in the record, apparently credible and competent, from which the jury could reasonably and rationally conclude that the defendant was guilty of the crime charged. High v. State, 9 Okla. Crim. 523, 132 P. 509; Curry v. State,9 Okla. Crim. 38, 130 P. 513; Dotson v. State, 14 Okla. Crim. 50,166 P. 902; Prather v. State, 14 Okla. Crim. 327, 170 P. 1176.

Next it is contended that the information is insufficient to charge the crime of robbery. The information was not demurred to in the lower court, neither was any motion in arrest of judgment interposed on the ground of the insufficiency of the information to state facts sufficient to charge the crime of robbery.

While the information is somewhat inartificially drawn and does not go into detail as to the manner of the use made by the accused of the revolver alleged to have been had and held by him, we deem it sufficient by inference and intendment to charge the crime of robbery.

It has been repeatedly held by this court that, where a defendant goes to trial and for the first time objects to the indictment or information when the state attempts to introduce testimony thereunder or upon appeal, or by habeas corpus, the objection should be overruled, if, by any intendment or presumption, the indictment or information can be sustained. McDaniel et al. v. State, 8 Okla. Crim. 209, 127 P. 358; Wilsford v. State, 8 Okla. Crim. 535, 129 P. 80; Edwards v. State,5 Okla. Crim. 20, 113 P. 214; White v. State, 4 Okla. Crim. 143,111 P. 1010; Ex parte Spencer, 7 Okla. Crim. 113, 122 P. 557.

It is also contended that the trial court erred in permitting the state to show by the witness York that at the time witness arrested the defendant on the night of the alleged robbery the defendant was armed, resisted arrest, and attempted to escape. In this connection it is contended that the evidence thus admitted tended to prove the guilt of the defendant of other offenses not directly connected with the offense charged.

No objection was interposed to this evidence in the trial court, and for that reason no reviewable question is presented in this court. The evidence of the possession of the revolver, which answered the description given by the prosecuting witness, and of the search light, which also answered the description given by the prosecuting witness, and of the description of the clothing worn by the defendant at the time of his arrest, which also answered the description given by the prosecuting witness, were all admissible on the question of the identity of the defendant with that of the man who committed the robbery. The evidence of his attempted escape from arrest and resistance to arrest were provable as indicating a consciousness of guilt on his part, and the admissibility of this evidence was not affected by the fact that it tended to prove the defendant guilty of other offenses. Hill's Criminal Evidence, §§ 54, 115, and 118; Robinson v. State,8 Okla. Crim. 674, 130 P. 121; Vickers v. United States,1 Okla. Crim. 452-462, 98 P. 467.

It is also contended that the trial court erred in limiting the jury in its instructions to a consideration of first degree robbery only. The information charged robbery in the first degree. The undisputed evidence was to the effect that the robbery was accomplished by putting the person robbed in fear of immediate injury to his person. Robbery accomplished by putting the person robbed in fear of immediate injury to his person is robbery in the first degree.

The trial court is not required to instruct as to the lower degree of the crime charged, if there is no evidence tending to reduce the crime to such degree. Hunter v. State, 3 Okla. Crim. 533, 107 P. 444; Morris v. State, 4 Okla. Crim. 233,111 P. 1096; Hopkins v. State, 4 Okla. Crim. 194, 108 P. 420; Updike v. State, 9 Okla. Crim. 124, 130 P. 1107; Robinson v. Territory, 16 Okla. 241, 85 P. 451; Newby v. State,17 Okla. Crim. 291, 188 P. 124.

The instructions as a whole fairly cover the law of the case as applied to the evidence, and are free from prejudicial errors.

After a careful examination of the entire record, the court is of the opinion that defendant had a fair and impartial trial, that there is ample evidence in the record to sustain the verdict and judgment, and that no error occurred during the progress of the trial sufficiently prejudicial to authorize a reversal of the judgment.

For reasons stated, the judgment is therefore affirmed.

DOYLE, J., concurs.

BESSEY, J., absent, not participating.