Lawson v. State, A--15151

• Decision Date: 28 April 1971
• Docket Number: No. A--15151,A--15151
• Citation: 484 P.2d 900
• Parties: Richard Dale LAWSON, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 900

484 P.2d 900

Richard Dale LAWSON, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--15151.

Court of Criminal Appeals of Oklahoma.

April 28, 1971.

Andrew T. Dalton, J., Public Defender, Tulsa County, for plaintiff in error.

G. T. Blankenship, Atty. Gen., Dale F. Crowder, Asst. Atty. Gen., for defendant in error.

OPINION

BRETT, Judge:

Proscriptions inherent in the laws of this State regarding prosecution of, and punishment for, criminal acts or omissions are designated in Oklahoma's Penal Code as in Title 21 O.S.1961, § 23, in effect when this trial was had, as follows:

'An act or omission which is made punishable in different ways by different provisions of this Code, or other penal statutes, may be punished under either of such provisions, except that in cases specified in Sections 2805 and 2808, (21 O.S. §§ 51 and 54), the punishments therein prescribed are substituted for those prescribed for a first offense, but in no case can it be punished under more than one; and an acquittal or conviction and sentence under either one, bars the prosecution for the same act or omission under any other.'

That section of the Statutes was amended by the Oklahoma Legislature and is now found as 21 O.S.Supp.1970, § 11, and provides:

'If there be any other chapter of the laws of this state a provision making any specific act or omission criminal and providing the punishment therefor, and there be in this penal code any provision or section making the same act or omission a criminal offense or prescribing the punishment therefor, that offense and the punishment thereof, shall be governed by the special provisions made in relation thereto, and not by the provisions of this penal code. But an act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, except that in cases specified in §§ 51 and 54, the punishments therein prescribed are substituted for those prescribed for a first offense, but in no case can be punished under more than one; and an acquittal or conviction and sentence under either one, bars the prosecution for the same act or omission under any other.'

In the instant appeal, plaintiff in error, Richard Dale Lawson, hereinafter referred to as 'defendant', was convicted in the District Court of Tulsa County, case No. 23579, for the crime of Burglary in the First Degree; and on February 27, 1969, was sentenced to serve twenty (20) years imprisonment. From that judgment and sentence this appeal was lodged. Defendant sets forth eight propositions in his brief, but it will not be necessary to discuss them separately, because he was convicted under the same facts, circumstances and with the same evidence for the crime of 'Robbery With Firearms' for which he was earlier convicted. See: Lawson v. State, Okl.Cr., 479 P.2d 600 (1971), wherein this Court modified and affirmed the judgment and sentence to be: Imprisonment for a period of from ten (10) to thirty (30) years.

The information in the instant case alleged, in part that defendant:

'* * * did unlawfully, wilfully and burglariously, in the nighttime, break and enter into a certain dwelling house occupied by and in the possession of Harold Porter Hill, Jr., located at 12425 East 22nd Street in the City of Tulsa, State of Oklahoma, in which there was at said time a human being, to-wit: Harold Porter Hill, Jr., by forcibly breaking open an outer door of said swelling house and entering without the consent of said occupant, with the unlawful and burglarious intent then and there to commit the crime of larceny.'

After making his unlawful entry, he used a pistol to commit the Robbery with Firearms, for which he was first convicted. Stated briefly the facts revealed by the trial record are: Harold Porter Hill, Jr., was at his home at 12425 East 22nd Street, Tulsa, Oklahoma, on the night of July 27, 1969. After having retired for the evening sometime after midnight he was awakended when he heard a noise in the hallway to his bedroom and saw what he described as light from a flashlight under the door to the bedroom. Mr. Hill arose immediately and when he switched on the light, he saw a man dressed in black attire, holding a gun pointed at him. The intruder ordered him to lie on the bed face down; he tied Mr. Hill's hands and feet, gagged and blindfolded him, and left the room. Mr. Hill could hear the man rummaging through the drawers, closets and other rooms of his house; and he especially recalled hearing a 'zipper noise' which appeared to come from the closet of the bedroom. The evidence later developed that Mr. Hill's rifle stored in a 'zipper case' had been removed from the case. Mr. Hill testified that his trousers were on a chair in the bedroom when he retired for the night; and that his billfold was in the pants pocket.

After the intruder left the house, Mr. Hill arose from the bed, and after some difficulty removed his bonds. He then discovered his billfold, minus his money, in the kitchen and that the telephone wires were torn from their connections. Later he discovered several pieces of his wife's jewelry missing. The following week, with the aid of his wife, who had returned home, a complete inventory of the items missing was made. Mr. Hill identified the defendant from the police department 'mug-book'; and later at a police line-up.

Defendant attempted to raise the issue of former jeopardy by his 'Motion to Quash and Suppress', but the earlier conviction for Robbery with Firearms was on appeal and the...