Decker v State

Decker v State
1936 OK CR 23
54 P.2d 1096
58 Okl.Cr. 445
Decided: 02/21/1936
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Robbery -- Conviction Sustained. Evidence examined, and held sufficient.

2. Appeal and Error -- Review of Objections to Evidence -- Requisites of Brief. Objections to testimony in lower court will be considered only where precise error is clearly pointed out in brief; brief must state page of record on which testimony objected to is found and counsel's argument and cite authorities relied on to sustain objections.

3. Indictment and Information -- Amendment of Felony Information to Correct Clerical Error in Date. In a felony case, a defendant is not prejudiced by an amendment to the information in the trial court to correct the date, which date is obviously a clerical error.

4. Same -- Unnecessary to Allege Accused Had or Waived Preliminary Examination. An information charging a felony need not

Page 446

allege that defendant had a preliminary examination or that the same was waived.

Appeal from District Court, Oklahoma County; Clarence Mills, Judge.

Keith Decker was convicted of robbery with firearms, and he appeals. Affirmed.

Bishop & Bishop, Frank Seay, and Tant & Moss, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

EDWARDS, P.J. Plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of robbery with firearms, and his punishment was fixed at five years in the state penitentiary.

The evidence is that a drug store in Oklahoma City operated by Roy Bow and wife was robbed; the robber, at the point of a gun, forcing Mrs. Bow to open the cash register and give him $22.83 from the till. Some ten days later defendant was arrested and charged with the robbery.

Mrs. Bow testified as above stated and, further, that soon after the robbery she viewed several suspects but did not identify them. About ten days later she saw defendant and was able to identify him positively as the person who committed the robbery. George Kerr, a deputy sheriff, testified he arrested defendant some seven or eight days after the crime and defendant gave him a fictitious name. The defense was alibi. Defendant testified he was gambling in Ada at they time. Evidently the jury did not believe this. The evidence is sufficient.

The first contention is that the court admitted incompetent evidence over objection. In support thereof defendant

Page 447

quotes several pages of testimony, but does not point out the particular part claimed prejudicial, but says:

"The evidence having been heretofore set out and shown fully in case-made, it is useless to burden the record by recapitulation of the same."

This does not comply with the rules of the court and presents no question for review. Rule 7. This court cannot search the record to discover some evidence that may have been improperly admitted. The evidence complained of must have been objected to and exceptions reserved to an adverse ruling and the ruling assigned as error in the motion for new trial and the petition in error. Then it must be pointed out in the brief and authorities in support of the contention cited.

Next, defendant argues the court erred in allowing the information to be amended during the trial. The amendment was merely as to form, being the correction of a stenographic error. Defendant at the time stated he had no objection. No authorities are cited. This question was passed on adversely to defendant's contention. Johnson v. State, 21 Okla. Cr. 17, 204 Pac. 311, and numerous other cases.

Lastly, defendant asserts the record shows this case was begun by the filing of an information in the district court and not by complaint before a committing magistrate. The presumption is that defendant had a preliminary examination or that same was waived. All preliminary proceedings are waived, unless timely motion to set aside or quash the information is made. Ex parte Robinson, 56 Okla. Cr. 404, 41 P.2d 127, and authorities cited. No such motion was filed in this case. It appears, moreover, that a preliminary was held and the preliminary information was in court at the trial and at the time the

Page 448

amendment to the information was allowed. The defendant had a fair trial.