McAlpine v. State

• Decision Date: 21 September 1981
• Docket Number: No. F-80-481,F-80-481
• Citation: 634 P.2d 747
• Parties: Johnnie Lewis McALPINE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 747

634 P.2d 747

Johnnie Lewis McALPINE, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-80-481.

Court of Criminal Appeals of Oklahoma.

Sept. 21, 1981.

An appeal from the District Court of Osage County; W. O. Green, III, judge.

Johnnie Lewis McAlpine, appellant, was convicted of the offense of Uttering a Forged Instrument; was sentenced to four (4) years' imprisonment, three (3) years of which were suspended, and appeals. AFFIRMED.

Ronald H. Mook, Thomas W. Burns, Tulsa, for appellant.

Jan Eric Cartwright, Atty. Gen., Michael Avant-Pybas, Asst. Atty. Gen., Oklahoma City, for appellee.

MEMORANDUM OPINION

CORNISH, Judge:

The appellant was convicted of Uttering a Forged Instrument. Punishment was assessed at four (4) years' imprisonment, three (3) of which were suspended. The appellant entered the First National Bank of Hominy on December 2, 1977, to deposit a check for $75,000.00, drawn on the account of Robert and Audrey Walker, purportedly signed by Robert Walker. Mrs. Walker contacted the authorities after receiving the check with the monthly bank statement, claiming that her husband, since deceased, had never signed the check. An expert witness testified that the signature on the $75,000.00 check did not match the signature on other checks signed by Mr. Walker.

The appellant, first, asserts that his constitutional right to protection against double jeopardy was violated. Evidence of the forgery was introduced, as proof of motive, in a prior trial, in which the appellant was tried and acquitted for the first degree murder of Robert Walker.

This court recently reviewed the law pertaining to double jeopardy in Johnson v. State, 611 P.2d 1137 (Okl.Cr.1980). In that case, we examined the two accepted tests, the "same evidence" test and the "same transaction" test, which determine whether a defendant's double jeopardy rights have been violated. After reviewing the instant case, we find that the appellant's double jeopardy rights were not violated, regardless of which test is used.

First, it is urged that it is unnecessary for the State to prove any additional fact in the instant case, of Uttering a Forged Instrument, than was required to be prove in the appellant's prior first degree murder trial. Uttering a forged instrument is not an element of first degree murder, nor are the elements of both crimes the same, as required by the same evidence test to prevent multiple prosecutions. Proof of the crime of uttering a forged instrument was simply the means used by the prosecution in the murder trial to show motive for the murder, thereby establishing the element of malice.

Uttering a forged instrument is not a lesser included offense in the crime of first degree murder, as the appellant further urges. He cites Harris v. State of Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977), as authority. In that case, a felony murder prosecution, the United States Supreme Court held that a person tried and convicted of a crime which includes lesser crimes cannot be subsequently tried for one of these lesser crimes. In felony murder, proof of the underlying felony suffices as proof of the requisite element, malice aforethought. However, a felony murder is not an issue in the instant case, nor in his prior prosecution. It was not necessary to prove the specific crime, uttering a forged instrument, to supply the element of malice for the murder charge. In felony murder cases, the underlying felony must be proved. In this case, proof of another crime was used to prove motive. Furthermore, evidence of the forgery in the former case was properly admitted as evidence of other crimes to show motive, pursuant to the Oklahoma Evidence...