ROBBERY WITH A DANGEROUS WEAPON - ELEMENTS
No person may be convicted of robbery with a dangerous weapon 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/(the immediate presence) of another;
Seventh, by force/fear;
Eighth, through use of a (loaded/unloaded firearm)/(blank/ imitation firearm capable of raising in the mind of the person threatened with such device a fear that it is a real firearm)/(dangerous weapon).
Statutory Authority: 21 O.S. 1991, §§ 791, 801.
Section 801 creates a crime of aggravated robbery, with the aggravating factor being the use of a firearm or a dangerous weapon. The word "robbery" as used in section 801 has the same definition as in section 791. Roulston v. State, 307 P.2d 861 (Okl. Cr. 1957); Inman v. State, 61 Okl. Cr. 73, 65 P.2d 1228 (1937); Simpson v. State, 40 Okl. Cr. 58, 266 P. 783 (1928). Hence, the elements of the crime created by section 801 are identical to the elements of robbery in the second degree with the addition of the eighth element listing the aggravating circumstance. However, punishment may be fixed under the provisions of section 801 only where the defendant is charged with violating that statute in the information. Gamble v. State, 554 P.2d 23 (Okl. Cr. 1976).
The statutory language of section 801 reads, "Any person ... who, with the use of any firearms or any other dangerous weapons, ... robs any person." No distinction is made between a person robbed on the street and a person in an establishment such as a bank teller robbed in a bank. Thus, all robberies with firearms or dangerous weapons are aggravated robberies. It should be remembered, however, that no robbery has occurred unless the taking is from the person or the immediate presence of another. Thus the language "robs ... any place of business, residence or banking institution or any other place inhabited or attended by any person or persons at any time, either day or night" is surplusage. A bank cannot be robbed because a bank is not a person. A robbery can occur in a bank, however, by a robber using force against a bank employee. Some states have made robbery in a bank, more commonly called bank robbery, a separate and more serious form of robbery. Section 801 does not create a bank-robbery crime. It is simply an aggravated form of robbery by the use of a firearm or dangerous weapon against any person no matter where the person is located at the time of the robbery. It is therefore unnecessary to allege or to prove that the robbery with a dangerous weapon occurred in any specified location. The Commission has made these comments because at first glance one could possibly interpret section 801 to encompass all thefts - larceny, burglary, robbery - in a bank or business place. A person who breaks and enters an ice cream store and steals equipment while the store is deserted has committed burglary and larceny, but has not committed the crime created by section 801.
Section 801 was amended in 1973 to clarify and expand the use of the term "firearm."