Orcutt v. State
| Decision Date | 12 September 1931 |
| Docket Number | A-7979. |
| Citation | 3 P.2d 912,52 Okla.Crim. 217 |
| Parties | ORCUTT v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Rehearing Denied Oct. 16, 1931.
Syllabus by the Court.
Robbing different individuals riding in the same automobile in rapid succession constitutes a distinct offense for each individual, and a conviction or acquittal for robbing one is no bar to a prosecution for robbing others.
Syllabus by the Court.
On a plea of former acquittal, in determining whether the two informations charged the same offense, the test is whether the evidence necessary to support the second information would have been sufficient to procure a conviction upon the first information.
Appeal from District Court, Tulsa County; Saul A. Yager, Judge.
Earl Orcutt was convicted of robbery with firearms, and he appeals.
Affirmed.
Luther Lane, of Tulsa, for plaintiff in error.
J Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty Gen., for the State.
Plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of the crime of robbery with firearms, and his punishment fixed by the jury at imprisonment in the state penitentiary for ten years.
The only question presented in this appeal is that of former jeopardy.
The facts so far as the question of former jeopardy is concerned are that this defendant, together with Lester Garvin and Peewee Wilson, forced W. K. Cottrell and W. E. Sturdevant to drive Cottrell's automobile out southeast of the city of Tulsa a few miles and there compelled them at the point of a gun to get out of the car, and, while this defendant held a gun upon them, one of his codefendants robbed Cottrell of $40 in money, a gold watch, and diamond ring, and the other one robbed Sturdevant of $82 in money.
The defendant was first tried for the robbery of Cottrell and was acquitted, and he now contends that that acquittal was equivalent to an acquittal for having robbed Sturdevant.
If the defendant by reason of his acquittal upon the charge of robbery of Cottrell cannot be further prosecuted in this case for the robbery of Sturdevant, then all the contentions alleged in the brief of the plaintiff in error are well taken. However, if the acquittal in the case of Cottrell was not a bar to the subsequent prosecution in the case of Sturdevant, then all the contentions alleged in the brief of plaintiff in error must fall, as they are all based primarily on this proposition.
Defendant in his brief cites Jackson v. State, 11 Okl. Cr 523, 148 P. 1058. In that case defendant had been prosecuted for the possession of four barrels of whisky and acquitted. Subsequently, he was prosecuted for the transportation of the same whisky. The court there held that, possession being necessary in both cases, they constituted the same offense. But, suppose defendant had been charged with transporting the whisky and selling some of it to John Jones; in that case it could not be contended that the offenses were the same. So that Jackson v. State, supra, does not support the contention of defendant.
On the same day, the state filed two informations against the defendant, one charging him with the robbery of W. K Cottrell, and the other charging him with the robbery of W. E. Sturdevant. The record contains the two informations-one being that in the case at bar, wherein the defendant was charged with the robbery of W. E. Sturdevant; the other information charging the robbery of W. K. Cottrell, and upon which defendant was acquitted.
Defendant contends that the robbery of Cottrell and Sturdevant, occurring practically at the same time and at the same place, were not separate robberies but one act, and that therefore his plea of former jeopardy should have been sustained.
This question involves the construction of section 21, of article 2 of the Constitution, which reads as follows:
It also involves the construction of section 2626, C. O. S. 1921, which reads as follows: "When the defendant shall have been convicted or acquitted upon an indictment or information, the conviction or acquittal is a bar to another indictment or information for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that indictment or information."
Robbery is defined by section 1784, C. O. S. 1921, to be: "A wrongful taking of personal property in the possession of another from his person or immediate presence and against his will, accomplished by means of force or fear." In Harris v. State, 17 Okl. Cr. 69, 175 P. 627, 632, this court said: "The burden is upon the defendant to show that his plea of former acquittal and former jeopardy is well founded, both in law and fact." See, also, Harmon v. State (Okl. Cr. App.) 278 P. 354; State v. Tennison (Okl. Cr. App.) 281 P. 313.
The first question to be determined is, Was the robbery of Cottrell the same crime as the robbery of Sturdevant, occurring as it did, under the circumstances set forth in the record?
Wharton's Criminal Law, vol. 1 (11th Ed.) p. 508, states the rule:
8 Ruling Case Law, p. 143, § 128, states the rule thus:
"The prohibition of the ancient principle of the common law and the constitutional provisions declaratory thereof, against a second jeopardy, apply only to a second prosecution for the identical act and crime both in law and fact for which the first prosecution was instituted.
When a single transaction constitutes two or more offenses, wherein the lesser offense is not necessarily involved in the greater, and when the facts necessary to convict on the second prosecution would not necessarily have convicted on the first, then the first prosecution will not be a bar to the second.
A putting in jeopardy for one act is no bar to a prosecution for a separate and distinct act, merely because they are so closely connected in point of time that it is impossible to separate the evidence relating to them on the trial for the one of them first had. Consequently a plea of former jeopardy will not be sustained where it appears that in one transaction two distinct crimes were committed."
In 16 Corpus Juris, p. 263, § 443, the rule is stated:
In State v. Ragan, 123 Kan. 399, 256 P. 169, that court said:
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