"It is the well-established doctrine in this state, that where the testimony of the witness was given at a preliminary examination, and taken down by the reporter in the presence of the defendant and his counsel, who cross-examined him, and such testimony was filed with the clerk, the transcript is admissible, where the witness is not present and cannot be found in the jurisdiction."

"Q. You tell the court that you have made a diligent search in Logan County and the state of Oklahoma for this witness, and that you cannot find her. A. I have, Your Honor.

"Q. And that she is absent and cannot be located and produced at this time. A. I have been unable to produce her."

"A. Well, somebody knocked and I went to the door and they came in the room, the bell boy and three men.

"Q. And what happened then? A. Well, the tall slim one asked me did I have any money, and grabbed me by the hair of the head and asked me did I have any money and I told him no, I had been to the bank, he said not to lie and he grabbed me again and one man hit me.

"Q. Now which man hit you? A. Fletcher.

"Q. This man, the defendant hit you in the stomach? A. Yes.

"Q. Well, did they take anything? A. I had $93.00 in my make up kit.

"Q. All right, what happened then? A. The tall slim guy took it and put it in his pocket.

"Q. What happened then? A. Well the tall slim guy said get your clothes on, we're going, and I said `there's no use in taking me, you've got the money', and so he said to pack and so I started to the closet real slow and so he started packing for me, and so he just threw me in there and they took me out.

"Q. And where did they take you to? A. Well they took me downstairs first, the one paid the rent and there was a car parked out there and we got in the car."

"Q. And the defendant was there at all times? A. Yes.

"Q. Fletcher. A. Yes.

"Q. And that was here in Logan County at the Ione Hotel? A. Yes."

"Q. (to defendant) now stand up. Is this the man you said hit you? A. Yes.

"Q. What is his name? A. James William Fletcher.

"Q. How long have you known him? I never knew him before, I never saw him before.

"Q. You never saw him before that night? A. No.

"Q. Now who told you his name was James William Fletcher? A. The police."

"Q. Do you see in the courtroom at this time either one of those three men who came in that door at the time about which you have just related? A. Yes, sir.

"Q. Will you point him out? A. It is Fletcher over there (indicating).

"Q. Which one? A. The one right here (indicating).

"Q. Well, this is the attorney and this is somebody else, now, which one do you mean? A. The one with the white shirt and the brown tie.

"Q. Was he one of the three men who came in the hotel? A. He was.

"Q. Are you positive as to that? A. Yes, sir.

"Q. Now, you say they went to the elevator? A. Yes, sir.

"Q. Tell us what they did, whether they entered the elevator or what did they do? A. When they first come up to the elevator I walked over slowly towards the elevator, and when I got close to the elevator I made a half step backward as if I refused to carry them up because they didn't go by the desk or anything, and he said he wanted to go to 200."

"A. Well, he asked me where was this girl, what room she was in.

"Q. And what did you say? A. Well, after he turned around as if he might do something to me, I said `probably she is in 202.'

"Q. Well, now what do you mean `probably' — how did they conduct themselves with reference to their hands? A. Well, most of the time while they was out in the hall they had their hands in their pockets.

"Q. Do you know whether they were gloved or not? Did you see whether they had gloves on or not? A. No, I —

"Q. You don't remember? A. No.

"Q. You don't remember these little details? A. I don't remember but one pair of gloves.

"Q. You don't remember but one pair of gloves, do you know who had on that pair of gloves? A. Well, the guy that was in front of me. He didn't have on the gloves until we got in the room, and then he went into his inside coat pocket and brought out some real thin gloves and put them on.

"Q. Now, how did you folks get into this Room 202, what did they say to you about opening that door, if anything? A. They told me if I didn't open that door they was going to kick it in.

"Q. And what did you say? A. I said, `Well, I'll go get the key'.

"Q. And what did they say? A. Well, I turned to go get the key and they said, `Never mind, we won't need the key, we're going to kick it in'. They said `If you don't open it we're going to kick it in'.

"Q. Then what happened, just tell the jury what happened? A. Well, they knocked on it several times and then she roused up and opened the door a little and they just pushed it on open.

"Q. Did you observe how this woman was dressed, was she dressed for bed, or otherwise, or do you remember? A. As close as I remember she was.

"Q. Well, now, did you go into the room ahead of them, or how? A. No, I didn't.

"Q. Were you still between the men? A. Yes, a little later afterwards, he went in. This other guy that went in first, he say `You come in and you get over there and you sit down in the corner and keep your mouth shut'. I mean, those are not the actual words he said but —

"Q. Well, what did he say? A. He said, he tol' me `You get over there and keep your damn mouth shut'.

"Q. Was Mr. Fletcher, this defendant here, in that room with you at the time that these other two men and Mrs. Sanders were there? A. Yes, he was. After I come in, he come in next and then another guy come in and stood at the door.

"Q. The last one stood by the door? A. Yes, sir.

"Q. Now, tell the jury just exactly what was said and by whom. A. Well, this man that first went in, he asked her for the money and she say, `I don't have any money', she kept saying `I don't have any money'.

"Q. What, if anything, did he do? A. Well, then he said `You have to be screwed', and that's when he struck her in the stomach.

"Q. Did you see anyone there grab her by the hair? A. Yes.

"Mr. Redwine: Now we object to that as a leading question.

"The Court: Sustained.

"Q. Well, what I want to know is exactly what happened and how as it happened? A. Well, when we first went in he asked her where the money was and she said, `I don't have any', and they said, `There's no use to kid us, we know you've got some money', and so she was sitting on the edge of the bed and then by that time he grabbed her by the hair and pulled her up and then he struck her in the stomach.

"Q. Now, who grabbed her by the hair and pulled her up? A. The first man that went inside the room.

"Q. Now, who if anyone, did you see strike this woman in the stomach? A. It was Fletcher that struck her in the stomach.

"Q. This man right over here? A. Yes sir.

"Q. How did he strike her in the stomach? A. He just hauled off with his fist and struck her in the stomach and she bent about double.

"Q. Did you make any effort to help her? A. No sir.

"Q. Why didn't you help her? A. Well, I was scared. He told me to keep my mouth shut, and I was scared to do anything at all.

"Q. Now, go ahead and tell what you saw that happened there in the presence of this defendant, Fletcher, and what he did, if anything. A. Well, he told this first guy that entered into the room —

"Q. Who told the first guy? A. Fletcher, he say `Well, let me talk to her', and he asked her about the money like the first one did and she denied having any money all the time until he hit her in the stomach, and she had a little overnight bag sitting up there on the dresser and she said `It's in there'.

"Q. She said what? A. She said `The money is in there'.

"Q. And who was she talking to when she said that? A. Well, at first she was talking to the first guy that entered the room, and then to Fletcher. The third guy never said a word to her.

"Q. Now, as I understand you, Fletcher is the one that hit her in the stomach when he said `Let me talk to her'? A. He was one of the two, yes sir.

"Q. What happened when she told him the money was in the night bag, or wherever it was? A. Well, she had to go get her key to open it.

"Q. Did she get the key? A. She did.

"Q. Who opened it? A. This first guy that entered the room, he was the one that opened it.

"Q. Who, if anyone, examined the bag, or which ones? A. Well, it was the first one that entered the room, he was the one that examined the bag and taken the money and put it in his inside coat pocket."

"A. The next thing I knew I was in Shawnee, Oklahoma.

"Q. You were in Shawnee, Oklahoma? A. Parked in front of a tourist court.

"Q. How were you aroused, if you were aroused? A. Oh, they just shook me and woke me up, I was laying there all cramped up and had luggage on top of me, and there was these three people in the front seat and one of them getting out and I said, `What's going on here?', and they said, `Well, we're going to get some rest', and I said, `Well, why did you go to the Rail Fence?', that's a place out on South Shields in Oklahoma City, and I asked them why they went out there, and they said, `Oh, we're in Shawnee', and that's when I started raising a little Cain, I said `I owe $300.00 on this car to my sister that I borrowed the money from and you all driving along and me laying back here drunk and you get arrested and me back here and I go to jail', so one of the boys went in to rent a cabin and he comes out with the man and they go look at it and they come back and he comes back over and said, `Well, I got one', I forget what he said it cost, so we drove over there and got out and went in, and these two fellows had a girl so we go into this cabin and the two fellows pull off their clothes and go to bed and the girl has got a transistor radio and she is playing it, so one of them gets in one bed and one of them gets in the other and I said, `well, what's going on, who are you with' and she says, `Well, they just came and got me and brought me over here to get some money for them.'"

"Judgment of conviction will not be reversed on ground that verdict is not supported by evidence, unless there is no substantial evidence tending to show guilt or evidence fails so far to support verdict that necessary inference is that jury must have acted from partiality, passion or prejudice." Also see Toms v. State, 95 Okl.Cr. 60, 239 P.2d 812; Campbell v. State, 95 Okl.Cr. 396, 247 P.2d 281.

"Defendant's Requested Instruction No. 1:

"You are instructed that the placing of witness, Nadine Sanders, under a `material witness bond' prior to the preliminary hearing by the County Court of this county, at the time acting as a committing magistrate, was illegal and contrary to law. In this regard, you are further instructed that you may take such fact of illegal arrest and incarceration of the witness, Nadine Sanders, into consideration for the purpose of how same may have or did affect her credibility as a witness at the preliminary hearing."

"Defendant's Requested Instruction No. 3:

"You are instructed that the crime of Vagrancy as charged against the witness, Nadine Sanders, in case No. — is a misdemeanor. In this regard you are further instructed that no officer of law is authorized to arrest and jail a person on a misdemeanor without a warrant for arrest of such person, unless the misdemeanor was committed in the presence of the arresting officer * * *"

"Defendant's Requested Instruction No. 6:

"You are instructed that it is unlawful for any person to use any force, threats, duress, restraint of person of a witness with the purpose or intent to affect the testimony of a witness in any judicial proceeding. Likewise it is unlawful for any person to practice any fraud or deceit, or knowingly make or exhibit any false statement, representation, token or writing, to any witness or person about to be called as a witness upon trial, proceedings, inquiry or investigation whatsoever, with intent to affect the testimony of such witness. The foregoing applies to officers of the law, as well as to civilians, for when officers so act they no longer are instruments of lawful administration of justice but become a law unto themselves. If you believe that duress or coercion or other unauthorized practices were used to procure the testimony of any witness, then you may take same into your consideration as to the weight and credit you give the testimony of such witnesses. Testimony unlawfully obtained or produced as aforesaid is entitled to the smallest credit, and of itself is insufficient to support a conviction. Given in part as shown by Instruction #8, exception allowed defendant."

"You are instructed that it is unlawful for any person to use any force, threats, duress, restraint of persons on or of a witness with the purpose or intent to affect the testimony of such witness in any judicial proceeding. The foregoing applies to officers of the law as well as to civilians. If you believe that duress or coercion, or other unauthorized practices were used to procure the testimony of any witness, then you may take same into your consideration as to the weight and credit you give the testimony of such witness. Testimony unlawfully obtained and produced, as aforesaid, is entitled to the smallest credit and of itself is insufficient to support a conviction."

"Introduction into evidence, at the trial of another, of the testimony of a witness, who was arrested without process, and restrained in jail, both prior to giving his evidence at the preliminary hearing, and prior to the trial, does not constitute a denial of due process, but goes to the witness' credibility, which under such conditions is entitled to the smallest credit though it might have been believed. Such evidence standing alone and unsupported by other evidence, may not be sufficient to sustain a conviction, but where amply supported, and when considered with the other evidence, may be sufficient to sustain a conviction."

"Where the instructions of the court fairly and impartially cover all of the issues in the case, it is not error to refuse requested instructions as to the law covered by the general instructions."

"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. (R.L. 1910, § 2364)."

"To constitute robbery the taking must in all cases be accompanied with a felonious intent, or animus furandi. If a party bona fide believe that property in the personal possession of another belong to him takes that property away from such person with menaces and violence, this is not robbery; and it is for the jury to say whether or not the accused did act under bona fide belief. Where a person under a bona fide belief that the property is his own, obtains it by menaces, there is a trespass, but no robbery."

"It is the duty of the trial court to charge the jury in direct or equivalent terms that, to constitute robbery, the taking of the property must have been taken with the intent to steal it, even though not requested so to do, such intent being a substantive element of this crime."

"* * * It would seem from the use of the word `wrongful' that our definition is more limited than the common law definition and that no intent is necessary except the intention of doing the act denounced by the statute. The word `wrongful' imports in its terms the infringement of some right, and `wrongful taking' would seem to be any taking of personal property against the will of the possessor, and if accomplished by means of force or fear it is robbery. No state of mind or belief is involved. It is the infringement of the right that makes the act wrongful — something of more value than property is involved. It is the violation of that fundamental right so much cherished in free nations, `of life, liberty and the pursuit of happiness', and where such rights are violated in the respect stated, coupled with violent means and method employed makes the act recited robbery, so far as defined by our statute. We are, therefore, compelled to overrule Johnson v. State, supra, so far as it purports to adopt the common law definition of robbery as expressed in paragraph one of its syllabus. Such is our conclusion, though truly not easily arrived at by any means. But we are convinced from an examination of our legislative provisions that the efficiency and sufficiency of our definitive statute, Tit. 21 O.S. 1951 § 791 [21-791], precludes and would not justify the reading in of words and definitive clauses not in the statute contained."

"`Counsel for [defense] must not only object to alleged improper statement of the county attorney in his argument to the jury, but he must go further and move the court to exclude such remarks from the jury and instruct them not to consider them for any purpose, unless the remarks were of such a character that the error would not be cured by a withdrawal of the remarks.'

"`Ordinarily error cannot be predicated upon mere unexplained excerpts from the remarks of counsel to the jury. Enough must appear of record to advise the appellate court of what preceded the alleged objectionable remarks and their meaning to be deduced from the context, and whether or not they were invited or provoked by remarks made by opposing counsel.

"`The right of argument contemplates a liberal freedom of speech, and the range of discussion, illustration, and argumentation is wide. Counsel for both the state and the defendant have a right to discuss fully from their standpoint the evidence and the inferences and deductions arising from it. It is only when argument by counsel for the state is grossly improper and unwarranted upon some point which may have affected defendant's rights that a reversal can be based on improper argument.'"

"* * * but the court held that the defendant was too late with his objection, after trial; that he could not take chances of an acquittal upon the merits of the action, and then object to the information for not stating the offense in as definite terms as might have been done." Also, see Monahan v. State, 95 Okl.Cr. 234, 243 P.2d 744, 745.