ROBBERY IN THE FIRST DEGREE - ELEMENTS
No person may be convicted of robbery in the first degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
Third, carrying away;
Fourth, personal property;
Fifth, of another;
Sixth, from the person/(immediate presence) of another;
Seventh, when, in the course of the robbery;
[Eighth, the defendant inflicted serious bodily injury upon the other person;]
[Eighth, the defendant threatened a person with serious bodily injury;]
[Eighth, the defendant intentionally put a person in fear of immediate serious bodily injury;]
[Eighth, the defendant committed/(threatened to commit) the crime of [Specify Felony] upon the other person].
Statutory Authority: 21 O.S. 2001, §§ 791, 797.
The crime of robbery is basically an aggravated form of larceny. Inman v. State, 61 Okl. Cr. 73, 65 P.2d 1228 (1937); Berry v. State, 44 Okl. Cr. 150, 279 P. 982 (1929); Randall v. State, 33 Okl. Cr. 262, 243 P. 983 (1926). The treatises list the elements of robbery as basically identical to the elements of larceny with the addition of two distinguishing elements: the taking must be from the person or the immediate presence of the one robbed; and the taking must be accomplished by use of force or fear. W. Clark & W. Marshall, A Treatise on the Law of Crime § 12.09, 882 (7th ed. 1967); W. LaFave & A. Scott, Criminal Law § 94, at 692 (1972); R. Perkins, Criminal Law 279 (2d ed. 1969). The statutory language of section 791, however, makes it incorrect to assert that robbery is defined in Oklahoma as it was at common law. Hence, the mens rea element of robbery in Oklahoma is "wrongful," whereas at common law the mens rea element was "the intent to deprive permanently," the same as that required for larceny. Traxler v. State, 96 Okl. Cr. 231, 251 P.2d 815 (1953); overruling Johnson v. State, 24 Okl. Cr. 326, 218 P. 179 (1923).
The statutory language of section 791 also raises the question of whether the element of asportation, "carrying away," is an element of robbery as it is of larceny. The statutory language says "taking of" with no specific reference to an action of carrying away. The syllabus to Norris v. State, 68 Okl. Cr. 172, 96 P.2d 540 (1939), states that robbery does not require an asportation. The facts and issues of Norris, however, involve the crime of kidnapping, and nowhere in the opinion is the crime of robbery even mentioned. In Karlin v. State, 540 P.2d 1181 (Okl. Cr. 1975), however, the Court of Criminal Appeals held by implication that asportation is a necessary element of the offense.
The personal property taken during the robbery must be the personal property of another. As in larceny, robbery is a crime against possessory rights of another in property, rather than against ownership. Hence, the use of force to obtain personal property pledged to another with the intent to deprive the pledgee of his possessory right would constitute robbery even though the robber is the owner of the property. It should be emphasized, however, that the person from whom the property is taken, or from whose presence the property is taken, need not be the same person as the owner or as the person having possessory rights. The person robbed need have no more than custody or control over the property taken. Robards v. State, 37 Okl. Cr. 371, 259 P. 166 (1927); Wilson v. State, 28 Okl. Cr. 102, 228 P. 1108 (1924).
The element of "taking" encompasses the concept that the property was originally in the control, custody, or possession of someone other than the taker. "Taking" indicates a transfer of control, custody, or possession. Hence, despite the statutory language "personal property in the possession of another," the Commission did not think it necessary to list as a separate element the concept of possession of another.
Nor did the Commission think it necessary to list as a separate element the concept present in the statutory language, "against his will." The seventh element indicates that the taking must be accomplished by force or fear of immediate injury. Any taking under those circumstances would necessarily be against the will of the person robbed. If the property is taken with the consent of the owner, the property has not been taken by force or fear. Shouquette v. State, 25 Okl. Cr. 169, 219 P. 727 (1923). The lack of consent is assuredly an essential concept to support a conviction for robbery, but the definition of the means used to obtain possession encompasses the concept.
The eighth element lists the alternate force and fear factors that were added to section 797 in 2001 to differentiate first degree from second degree robbery.