Barnhart v. State, F--73--335

• Decision Date: 30 January 1974
• Docket Number: No. F--73--335,F--73--335
• Citation: 518 P.2d 1123
• Parties: Byron Larue BARNHART, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1123

518 P.2d 1123

Byron Larue BARNHART, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--73--335.

Court of Criminal Appeals of Oklahoma.

Jan. 30, 1974.

Don Anderson, Public Defender, Oklahoma County, for appellant.

Larry Derryberry, Atty. Gen., for appellee.

OPINION

BUSSEY, Judge:

Appellant, Byron Larue Barnhart, hereinafter referred to as defendant, was charged, tried, and convicted in the District Court, Oklahoma County, Case No. CRF--73--214, for the offense of Robbery with Firearms; his punishment was fixed at One Hundred and One (101) years imprisonment, and from said judgment and sentence a timely appeal has been perfected to this Court.

At the trial, William Buchanan testified that he was a manager of the grocery department of Trade Mart, located on North May in Oklahoma City. The defendant was a former employee of the store and worked there for several months in 1971. On January 20, 1973, he went to the Founders Bank at 11:30 a.m. and withdrew over Five Thousand ($5,000.00) dollars in bills and coins. He parked in the back parking lot, as he was entering the store, defendant pointed a pistol at him and ordered him to put the money in the defendant's pickup. The defendant next ordered him to get into the pickup and made him sit on the floorboard. They traveled for some distance and defendant fired a shot at the 'endgate.' The defendant then shot Buchanan behind the right ear. The defendant felt his pulse and asked him if he were still alive. Buchanan did not reply and the defendant dumped him from the pickup at 36th and Eastern. He identified State's Exhibit No. 2 as the gun, and State's Exhibit No. 3 as one of his money bags.

Detective Burns testified that on January 20, 1973, he assisted in the investigation of the Trade Mart robbery. He was provided with defendant's name, picture, and description. He and his partner went to Lydia's Lounge in southwest Oklahoma City and observed defendant and a female companion leaving the club. He placed defendant under arrest and advised him of his constitutional rights. He asked the defendant and his companion where the pistol was, and the woman gave the officers Four Thousand ($4,000.00) Dollars, which she removed from her purse. The defendant stated that the pistol and the rest of the money were in his pickup. Burns observed blood on the floorboard of the pickup, the gun, and One Thousand ($1,000.00) Dollars in the glove compartment. The pistol contained live rounds and two empty casings in the cylinder.

Jessie Barnhart, defendant's mother, testified that she had never known defendant to leave his pickup unlocked. She testified that the defendant customarily kept a spare tire in the seat of the pickup. When she received the pickup from impoundment, the spare tire and the defendant's butcher tools were missing.

The sole proposition on appeal asserts that defendant has been punished excessively three times for the same criminal transaction. The defendant was also charged with Kidnapping, After Former Conviction of a Felony, and Assault with a Deadly Weapon with Intent to Kill, After Former Conviction of a Felony. Subsequent to the conviction in the instant case, defendant entered pleas of guilty and received a twenty-five (25) year sentence in the...