This cause comes into this court on error from the court of common pleas of Cuyahoga county, wherein the plaintiff in error was found guilty by a jury of the crime of robbery and sentenced to ten years in the penitentiary under an indictment of two counts, one of which was for assault with intent to commit a felony, and the other for robbery; and the error claimed is that the court, upon request, refused to charge *Page 513 the jury that under the evidence they could as well return a verdict for pocket picking as one for robbery; and the prejudice charged is that had such instructions been given the jury would have been justified in returning a verdict of pocket picking, and the defendant might have received a sentence of only five years in the penitentiary, and thus, as to the additional five years which were actually imposed, the rights of the plaintiff in error were prejudiced. The court refused to give the charge, and it is urged that the authority which the court below refused to follow is Brown v. State of Ohio, 2 C.C. (N.S.), 409, 15 C.D., 130, affirmed by the Supreme Court of Ohio in 77 Ohio St., at page 636, 84 N.E. 1132. Propositions 2 and 3 of the syllabus read:
"It is not necessary that crimes should be divided into degrees in order that they may come within a statute, such as Section 7316, authorizing a jury to find the defendant guilty of an attempt to commit the offense charged in the indictment; and inasmuch as the offense of pocket picking is the same as that of robbery, except that it lacks the ingredient of force or violence or putting in fear, one indicted for robbery can be convicted of pocket picking.
"A defendant indicted for robbery and convicted of pocket picking cannot complain that he was not notified of the charge against him in the indictment."
From an examination of that case it appears clear that the record disclosed all the elements of pocket picking, and in the case at bar the narrative form of the bill of exceptions does not contain evidence satisfying the requirements of the statute as to pocket picking. If, under the Brown case, *Page 514 supra, it was the duty of the court to comply with the request of counsel for defendant below to charge the jury with respect to pocket picking, it was because of the evidence in the case tending to prove the crime of pocket picking, and it is fair to presume that the evidence in this case did not justify such a charge, for the reason that it is a reasonable inference and presumption that the court had knowledge of the decision in theBrown case, supra, and followed it.
In the narrative form of the bill of exceptions filed herein, there is no narration of evidence, as there was in the Browncase, supra, that would warrant the jury in returning a verdict of pocket picking. In other words, it is impossible for a reviewing court to determine, first, whether pocket picking ought to have been charged, and, second, whether refusal so to do was prejudicial to the rights of the defendant below. This court must be guided by the record, and there is a failure in the bill of exceptions to submit all the evidence in the court below bearing upon the indictment.
The crime of robbery is defined by Section 12432, General Code, as follows:
"Whoever, by force or violence, or by putting in fear, steals and takes from the person of another anything of value is guilty of robbery, and shall be imprisoned in the penitentiary not less than ten years and not more than twenty-five years."
In Brown v. State, supra, the court in substance said that the offense of pocket picking is the same as that of robbery, except that it lacks the ingredient of force, or violence, or putting in fear, and that one indicted for robbery can be convicted of pocket picking. *Page 515
It is clear from the Brown opinion that in order to determine whether the evidence was prejudicial, and whether the court below was compelled to comply with the request of the defendant, all of the evidence in the court below bearing upon the charge in the indictment should be submitted in a bill of exceptions to a reviewing court; otherwise, the issue cannot be determined.
In Hanson v. State, 43 Ohio St. 376, 1 N.E. 136, our Supreme Court held, in substance, that the violence which is essential to the crime of robbery must be concomitant with the taking of the property of another, and must not be subsequent to the attempt to take the property.
Section 12449, General Code, defines pocket picking as follows:
"Whoever, otherwise than by force and violence, or by putting in fear, steals, and takes from the person of another anything of value, shall be imprisoned in the penitentiary not less than one year nor more than five years."
The apparent and obvious distinction between these two statutes can only be determined from all the evidence in the case, as bearing upon the error charged. It is clear from the sections quoted that there is a distinction between the two crimes, and that it requires the evidence in order to determine whether both crimes have been committed, or only one. It is impossible to reach this result from the curtailed bill of exceptions.
The judgment of the lower court is therefore affirmed.
Judgment affirmed.
LEVINE, P.J., and VICKERY, J., concur. *Page 516