(Syllabus.)

1. Robbery -- Robbery Distinguished from Larceny -- Information Held not Duplicitous. To constitute robbery, the taking must be either directly from the person or immediate presence and against the will of the party robbed, and must be by force or a previous putting in fear. It is the previous violence or intimidation that distinguishes robbery from larceny. The information in this case charged the taking of money and certain personal property "from off the persons and immediate presence" of the owners by means of force and fear, brought about by pointing pistols and threatening to shoot if resisted, followed by the allegation said defendants "did then and there steal, take, and carry away from the possession and from off the persons and immediate presence of them said money and personal property." Held, to sufficiently charge the crime of robbery and the words "steal, take and carry away," being mere surplusage, the information was not bad for duplicity.

2. Same -- Statute Relating to Armed Robbery Held not to Repeal or Modify Statute Defining Robbery. Section 2543, 0.S. 1931 (21 Okla. St. Ann. § 801), Penal Code, is a statute of classification and not of definition. It provides merely an enlarged punishment for robbery committed by the use of firearms and does not repeal or modify the definition of robbery as defined by section 2542 (21 Okla. St. Ann. § 791).

3. Appeal and Error -- Discretion of Court as to Granting Continuance. Applications for a continuance are addressed to the sound discretion of the court, and this court will not reverse the judgment of the trial court upon the ground that it refused to grant a continuance, unless it appears that such court manifestly abused its discretion in refusing it.

4. Same -- Scope of Review to Determine Whether Refusal of Continuance Was Abuse of Discretion. In reviewing the refusal of a continuance, all the facts and circumstances disclosed by the record and testimony on the trial will be considered in determining whether or not the exercise of discretion by such court was abused in denying the application.

5. Continuance -- Refusal of Continuance on Account of Defendant's Physical Condition Held not Error. Where, in application for continuance, the defendant states that he is physically unable to stand the strain of a trial, and to properly aid and advise his counsel, held that the overruling of the applica-

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tion under the circumstances recited in the opinion was not error.

6. Robbery -- Evidence Held to Support Conviction for Armed Robbery. In a prosecution for robbery, conjointly committed, evidence reviewed and found sufficient to support the verdict and judgment of conviction.

Appeal from District Court, Rogers County; N. B. Johnson, Judge.

Elmer Inman was convicted of robbery with firearms, and he appeals. Affirmed.

Elmer Inman, alias E. A. Inman, was convicted of the crime of robbery with firearms alleged to have been committed conjointy with others named as John Doe, Richard Roe, and Richard Row, in Rogers county on the 24th day of May, 1934. The information was filed in the district court of Rogers county July 10, 1935. The defendant upon his arraignment, July 29, 1935, and represented by Attorneys Kight and Kight, entered a plea of not guilty. On September 17, a jury was duly impaneled and sworn in said cause, and on September 18, the jury returned their verdict finding the defendant, Elmer Inman, guilty as charged in the information and assessing his punishment at imprisonment for five years in the state penitentiary.

Motion for new trial was made, heard, and overruled. Judgment was rendered on the verdict September 28, 1935. The petition in error and case-made were filed in this court March 27, 1936.

The testimony on the part of the state briefly stated was as follows:

W. E. Kissee in substance testified that he was in the jewelry and loan business in Claremore, and his place of business was on the north side of the main street, in

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the Mason block; that just before noon on the 24th day of May, 1934, three men came in the store. He was sitting on a chair and his wife was standing near the cash register. One of the men asked to see a banjo in the showcase; when he went to take the banjo out the man pointed a gun at him, another took hold of his wife, and with threats and by force made them go into the back room, that about that time J. H. Mednikow, a Memphis, Tenn., jewelry salesman, came in, and they forced him into the back room and there tied them with cords, and put adhesive tape over their mouths, that they all had guns, one a Smith and Wesson, another an automatic. Both safes were unlocked, but in messing around they locked one of the safes then could not unlock it, so, they untied him and brought him to the safe and made him unlock and open it, then took him to the back room and tied him up again, that they were there altogether about half an hour. When they were about to leave, the defendant, Inman, came back and said that they had the guns, diamonds, and jewelry packed and were ready to go, and the man guarding them told them to keep quiet for five minutes, the robbers then went out the front door and locked it as they left.

That when Mr. Mednikow came in one locked the door and pulled the window blinds down.

That one of the robbers was a small like fellow and had on a sweat jacket with a zipper, the one that grabbed his wife was a big fellow, the other was a tall slim fellow. That all were young fellows, he would judge between 25 and 30 years old.

That his wife got loose first, then she cut the cords with which he and Mr. Mednikow were tied, then he called Mr. Beard through a hole in the wall of the store and told him to call the police; that he lost $238 in money

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that was in the safe, and $5 in the cash register, that they picked and took the best guns, Smith and Wessons, Colts and Lugers, they also took a little over $900 worth of diamonds and took watches and rings out of the case, and packed the same in grips.

That the defendant, Inman, had on heavy rimmed tortoise shell glasses, and was the only one of the three that had on glasses. He positively identified the defendant, Inman, as being one of the three men that perpetrated the robbery.

Mrs. W. E. Kissee testified in substance they had a small housekeeping room and a bath in the rear of the store, that the front door was the only door to the store, and she was with her husband in the store when the three men came in, that they held guns on them and told them to be quiet, one stepped behind the counter, struck her in the back, and grabbed her and pushed her into the back room, then tied her arms and ankles, and put tape over her mouth, threatening to kill her and threatening to kill her husband. That the defendant, Inman, came to the door of the back room where one of the men holding a gun was guarding them, and said to him: "Well, we have got the diamonds gathered up, we have gone through the safe and got the money, watches, and the guns, and we will be ready to go in a few minutes." That the defendant had on a navy blue serge suit, blue shirt, black bow tie, straw hat, and had on dark rimmed glasses, that as they started the robbery Mr. Mednikow came into the store, that she had known him for many years, a man about eighty years of age and who is now in a hospital at Memphis.

At the close of the state's evidence, counsel for the defendant demurred to the evidence on the ground that

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the same fails to connect, the defendant with the commission of any offense.

On behalf of the defendant, Mrs. Mabel Inman testified that she was the wife of the defendant, that they were married at Tyler, Tex., in March, 1934, and from that time she traveled with him through Texas, Oklahoma, and Kansas. That their business was buying old gold, that her husband wore glasses with white gold frame, and rims, and that was the only kind of glasses she ever saw him wear, that her husband was not in Claremore, Rogers county, Okla., on May 24th, last year.

The defendant did not take the stand as a witness.

A. C. Brewster, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.

DOYLE, J. (after stating the facts as above). This is an appeal from the district court of Rogers county wherein the defendant, Elmer Inman, was convicted of the crime of robbery with firearms and sentenced to serve a term of five years imprisonment in the state penitentiary.

It is first contended that the trial court erred in overruling the demurrer to the information.

The information is in part as follows:

"Did then and there on said date and in said county and state, wilfully, unlawfully, feloniously and with intent to rob W. E. Kissee and Mrs. W. E. Kissee, did then and there point pistols and firearms at and towards the persons and bodies of the said W. E. Kissee and Mrs. W. E. Kissee, and threaten to shoot the said Kissees, if they resisted * * * and by means of such pointing of said pistols and such threatening, did then and there produce in the minds of them fear of immediate and unlawful in-

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jury to their persons sufficient to overcome their resistance * * * and the (said defendant and others) did take from off the persons and immediate presence of the said W. E. Kissee and Mrs. W. E. Kissee $238, good and lawful money of the United States and certain jewelry, guns and luggage of the value of $1,593 the personal property of the said W. E. Kissee and Mrs. W. E. Kissee, who were in the immediate possession and control of said money and personal property, and they, the said defendant and others did then and there steal, take, and carry away from the possession and from off the persons and immediate presence, of them the said W. E. Kissee and Mrs. W. E. Kissee, said money and personal property with the felonious intent of the said defendant and others to deprive the said W. E. Kissee and Mrs. W. E. Kissee, the true owners permanently thereof."

It is insisted that the language "from off the persons and immediate presence" is not sufficient to charge robbery, and that said information is bad for duplicity.

We do not think there is any merit in this contention.

Our Penal Code section 2542, 0.S. 1931 (21 Okla. St. Ann. § 791), defines "robbery" as follows:

"Robbery is a wrongful taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear."

And section 2543 (21 Okla. St. Ann. § 801):

"That any person or persons who, with the use of firearms or any other dangerous weapons, attempts to rob or robs any person or persons, or who robs or attempts to rob any place of business, residence or banking institution or any other place inhabitated or attended by any person or persons at any time, either day or night, shall be guilty of a felony, and, upon conviction therefor, shall suffer punishment by death, or imprisonment, at hard

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labor, in the state penitentiary, for a period of time of not less than five years, at the discretion of the court, or the Jury trying the same."

This last section does not define the crime of robbery, but merely increases the punishment for the crime as defined by section 2542, supra, when accomplished with the use of firearms or any other dangerous weapon, and is in effect a statute of classification. Generally speaking, robbery is a larceny, with aggravated features added, and the larcenous taking of money or goods of any value from the possession of another from his person or immediate presence, against his will by use of force or by putting in fear, is robbery. Randall V. State, 33 Okla. Cr. 262, 243 Pac. 983; Richards v. State, 22 Okla. Cr. 199, 210 Pac. 295; Wilson v. State, 28 Okla. Cr. 102, 228 Pac. 1108; Wells v. State, 34 Okla. Cr. 179, 245 Pac. 1007; Simpson V. State, 40 Okla. Cr. 58, 266 Pac. 783.

In the case of Hill v. State, 19 Okla. Cr. 406, 200 Pac. 253, this court said:

"The information in this case charged the taking of money from the person of another by means of force and fear, brought about by pointing a revolver and threatening to shoot if resisted, followed by the allegation, 'Said defendants did then and there wrongfully, willfully, unlawfully, forcibly, violently, and feloniously take, steal, and carry away.' Held to sufficiently charge the crime of robbery, and, the words 'steal and carry away' being mere surplusage, the information was not bad for duplicity."

Section 2892, 0.S. 1931 (22 Okla. St. Ann. § 410), Code of Criminal Procedure, provides:

"No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits."

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While there is much repetition and some surplusage in the information, the acts constituting the crime are set forth therein with sufficient certainty to appraise the defendant of the offense charged against him, and it includes all of the essential elements of robbery as defined by our Criminal Code.

It follows that the court did not err in overruling the demurrer to the information.

It is next contended that the trial court abused its discretion in denying the application for a continuance.

In the affidavit for continuance the defendant stated:

"That he has been confined in the county jail of Rogers county since May 23, 1935, that on his preliminary examination he was represented by the firm of Kight & Kight of Claremore, and A. C. Brewster of Pryor, Oklahoma, that since that time he has had no counsel; has had no money or means or friends by which and through which he could employ counsel. That Messrs. Kight & Kight had their names withdrawn as attorneys and that A. C. Brewster was appointed by the court at the expense of Rogers County to appear as his attorney, that A. C. Brewster came to court this morning by request of the wife of the defendant, she saying that she wanted the court to appoint an attorney for the defendant, that no effort has been made by any attorney to obtain witnesses at this term of court for the reason they have not been in the case since the trial of the preliminary, and the defendant has not obtained any witnesses and is not ready for trial.

"The defendant says as a further reason for continuance that he is wholly physically unable to attend the trial of this cause and will submit the testimony of Dr. C. W. Beson, his attending physician, and will show the court he is physically unable to attend the trial at this time for the purpose of conducting his defense before the jury.

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"Defendant further says that recently the persons who are guilty of this robbery have been apprehended and it is now known by the officers of Rogers county who the persons are who committed this crime."

A hearing was had. The defendant called W. A. Carson, sheriff of Rogers county, who testified that E. A. Inman had been in his custody since some time in July, and is now present in court, that he had informed him that Toby Harris, at Neosho, Mo., knew who committed this crime, and witness went up there last week and interviewed Toby Harris who said he knew nothing about it.

Dr. C. W. Beson testified that on September 14, he examined the defendant in the county jail and found his feet injured, that he has not called him since, that he did not believe the defendant physically fit to be in court for two or three days, that he had heard that the defendant received these injuries by trying to escape from jail, that the only trouble he suffers with is just his ankles and feet.

In reviewing the refusal of a continuance, all the facts and circumstances disclosed by the record and the testimony on the trial will be considered by this court in determining whether or not the exercise of discretion by the trial court was abused in denying the application. Tucker v. State, 9 Okla. Cr. 587, 132 Pac. 825; Harrison v. State, 10 Okla. Cr. 210, 135 Pac. 948; Nix v. State, 20 Okla. Cr. 373, 202 Pac. 1042, 26 A. L. R. 1053.

No rule is more firmly established in this state than that this court will not reverse the judgment of the trial court upon the ground that it refused to grant a continuance, unless it appears that such court has manifestly abused its discretion in refusing it. Killion v. State, 19 Okla. Cr. 215, 198 Pac. 625; Anderson v. State, 21 Okla. Cr. 193, 207 Pac. 977.

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In this case the affidavit does not disclose such diligence on the part of the defendant to procure the attendance of his witnesses as the law under the circumstances of the case required, or such as made it the duty of the trial court to grant the continuance. And the defendant was present in court at the time of the hearing of the motion for continuance, where the trial judge had opportunity to observe his physical condition.

In our opinion, the application lacks the evidence of good faith as well as that of due diligence.

From all that appears in the record, we conclude that the trial court did not abuse his discretion in overruling the motion for a continuance.

Several assignments of error are based on exceptions taken to the court's rulings on the admission and exclusion of testimony, as raised by the defendant. They appear to be without sufficient merit to require discussion.

Complaint is also made of two of the instructions given by the court which were excepted to by the defendant.

There were no instructions requested or presented to be given on the part of the defendant. The instructions complained of have been examined and considered sufficient in connection with the evidence in the case.

Another assignment is error in oral proceedings when the jurors were brought into court before the return of the verdict, all in the absence of the defendant's attorney.

An examination of the grounds of the motion for new trial show no such question was raised or presented to the trial court. The question cannot be raised in this court for the first time.

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Finally it is urged that the verdict of the jury is not sustained by the law and is contrary to the evidence.

In this case there can be no doubt as to the sufficiency of the evidence. Two eyewitnesses, the victims of the robbery, positively identified this defendant as one of the robbers. The credibility of these witnesses was in no way questioned, nor was any testimony offered on the part of the defendant to contradict them, except the bare statement of the wife of the defendant that he was not in Claremore on the day of the robbery. And a defendant convicted of crime upon such positive, convincing testimony as appears in this record has no legal right to a reversal of the conviction on the grounds that his defense was frustrated in whole or in part, unless it is shown that there is some probability that such defense is true.

Having examined the record and each of the several assignments of error, we find nothing that merits serious consideration, and were it not for the fact that the information charges a capital crime, we would feel constrained to affirm the conviction for the reason that the errors assigned are without sufficient merit to require discussion.

Finding no material error in the record, the judgment of the trial court is affirmed.

DAVENPORT, P. J., and BAREFOOT, J., concur.