Traxler v. State

On Rehearing.

PER CURIAM.

Counsel for defendant, by Hon. J. S. Braeewell, of Houston, Texas, have filed a petition for rehearing. Each member of this court has given the petition deliberate consideration. The argument presented is an arresting one, and we find no fault with the citations of authority, except the applicability. Overlooked is the fact that this court, as attempted to be stressed in the opinion, has never before noticed or considered our Legislative definition of robbery, Tit. 21 O.S. 1951 § 791, which must apply to the statute of classification, Tit. 21 O.S. 1951 § 801. Johnson v. State, 24 Okla. Cr. 326, 218 P. 179, in no way treated the subject here involved. It is evident that the statutory definition was overlooked. And probably because it is true, as we have seen, that it is at variance with the definition in practically every other state. Nevertheless, it is the solemn act of our Legislature, and by our research seems to be supported by good reason.

The complaint properly described the act charged as felonious, because robbery does constitute a felony, but such fact does not justify the reading into Section 791 of the word “felonious” in the sense as used in the common law definition of robbery. Other words and terms used in the complaint and in the information not required by Section 801 of Title 21, O.S. 1951, and Section 791 of Title 21 O.S. 1951, can be treated only as surplusage. The fact of the use could not deprive the defendant of any substantial right or prejudice him in any manner.

At one other time in the history of this court we had a situation where in a number of old eases we had made the mistake of reading into a statute words not therein contained and meaning not justified by the words actually used, and although long acquiesced in, we saw fit to correct the error and proceed strictly by the statutory provisions provided by our Legislature. See Ex parte Lewis, 85 Okla. Cr. 322, 188 P. 2d 367. And see on the reasonableness and saneness of such kind of action the Eighth Annual Benjamin Cardoza Lecture delivered before the Association of the Bar of the City of New York by Associate Justice William O. Douglas of the Supreme Court of the United States on “Stare Decisis” as reported in Vol. 21, Journal 7, of the Oklahoma Bar Association, dated February 25, 1950, the pertinent point quoted on page 426 of 218 P. 2d, Roberson v. State, 91 Okla. Cr. 217, 218 P. 2d 414. So, even if it could be said that in Johnson v. State, supra, the common law definition of robbery had been read into our statutory definition, Section 791, supra, still, by authority of the above we still would be justified in adhering to the plain and unambiguous definition of robbery prescribed by our Legislature.

We too Lave wandered down side paths and considered whether or not our statutory definition might eliminate the many legitimate defenses successfully interposed in the past where a person was charged with robbery by use of firearms or force and fear and involving persons in pursuit of their own stolen property, or officers taking property under void writs, etc., and we do not visualize the elimination of defenses other than in the respect treated in the opinion rendered. To go into the arguments surrounding the hypothetical eases urged would constitute dicta.

The further argument presented as to the other points raised will receive no further comment as those issues have in this jurisdiction been long settled.

The application for rehearing is overruled, and the mandate is ordered issued.