Richmond v. State

Decision Date20 October 1971
Docket NumberNo. A--15217,A--15217
Citation492 P.2d 349
PartiesClyde James RICHMOND, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Syllabus by the Court

(1.) Where the same acts may constitute different offenses, the different offenses may be set forth in separate counts in the alternative and defendant convicted of either offense. 22 O.S.1961, § 404.

(2.) An act or omission made punishable by different statutes may be punished under any such provision, but cannot be punished under more than one; and an acquittal or conviction under one provision, bars the prosecution for the same act or omission under any other. 21 O.S.Supp.1970, § 11.

(3.) Where defendant breaks into a motel room, strikes an occupant, and brandishes a revolver, and flees without taking anything, he may be prosecuted for either first degree burglary, attempted robbery with firearms, or assault and battery with a dangerous weapon, but he cannot be convicted for all three offenses as they were incident to, and part of, one objective or criminal act.

An appeal from the District Court of Oklahoma County; Jack R. Parr, Judge.

Clyde James Richmond was convicted and sentenced for attempted robbery with firearms, after former conviction of a felony, 20 years, assault and battery with a dangerous weapon, after former conviction of a felony, 10 years, and first degree burglary after former conviction of a felony, 20 years, and appeals. Conviction for attempted robbery with firearms affirmed. Convictions for assault and battery and burglary reversed.

Don Anderson, public defender, Oklahoma County, for plaintiff in error.

G. T. Blankenship, Atty. Gen., W. Howard O'Bryan, Jr., Asst. Atty. Gen., for defendant in error.

BRETT, Judge:

Plaintiff in Error, Clyde James Richmond, hereinafter referred to as defendant, was convicted in the District Court of Oklahoma County with the crimes of attempted robbery with firearms, after former conviction of a felony, case no. 35463; assault and battery with a dangerous weapon with the intent to do bodily harm, after former conviction of a felony, case no. 35465; and burglary, first degree, after former conviction of a felony, case no. 35466. Judgment and sentence was imposed in each case on March 21, 1969, with punishment assessed at 20 years for the attempted robbery, 10 years for the assault and battery, and 20 years for the burglary, with sentences to run concurrently.

Each charge arose from the same incident. Around 11:15 A.M. on December 23, 1968, a man broke into the motel room of Mr. and Mrs. Jack Hockgeiger in Oklahoma County. The intruder struck the occupants with something in his upraised arm, dropped the object, retreated momentarily, and returned with a revolver. Mr. & Mrs. Hockgeiger fought off the intruder, who then fled the room. The Hockgeigers notified the motel office that a Negro male, wearing a blue sweater, had broken into their room. The motel clerk noticed a Negro wearing a blue sweater leave the motel rather hurriedly in an Oldsmobile, noted the tag number, and notified the police. Shortly thereafter, the defendant was arrested not far from the motel. On these facts, defendant was convicted and sentenced for the three offenses involved herein.

The primary issue is whether defendant may be convicted for three crimes under these facts.

Where the same act may constitute different offenses, the different offenses may be set forth in separate counts in the alternative and defendant convicted of either offense. 22 O.S.1961, § 404. But multiple convictions and punishments for a single criminal act is prohibited. Title 21 O.S.Supp.1970, § 11, provides in relevant part:

(A)n 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 he be punished under more than one * * *.

These provisions are not new law, but have been on the statute books for more than half a century. Concerning the constitutional prohibition against twice putting a person in jeopardy for the same offense, this court stated in Estep v. State, 11 Okl.Cr. 103, 143 P. 64 (1914):

To make the offenses the same, the informations need not be identical in language. The name of the offense in the two informations may differ, and within our constitutional guaranty, the offenses be the same. 1 Bishop's New Cr.L. Par. 1050. The term 'same offense,' as used in the constitutional provision does not signify the same offense Eo nomine, but the same criminal act, transaction, or omission. 11 Okl.Cr. at 106--107, 143 P. at 66.

In Shackelford v. State, Okl.Cr., 481 P.2d 163 (1971) this court applied Section 11 of Title 21 and held:

A defendant convicted of robbery by...

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8 cases
  • Hale v. State, F-92-162
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • January 20, 1995
    ...additions over the years, the statute has always been interpreted as prohibiting multiple punishments. See e.g., Richmond v. State, 492 P.2d 349, 350 (Okl.Cr.1971) ("These provisions are not new law, but have been on the statute books for more than half a century."), and cases and discussio......
  • Brasier v. Douglas
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • March 27, 1987
    ...argues that his conviction for two crimes was prohibited by Okla.Stat. tit. 21, Sec. 11 (1971), as construed by Richmond v. State, 492 P.2d 349 (Okla.Crim.App.1971), and Lawson v. State, 484 P.2d 900 (Okla.Crim.App.1971). Okla.Stat. tit. 21, Sec. 11 (1971), provides that one "act or omissio......
  • Perez v. State, F-78-587
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • August 4, 1980
    ...offense. See Hammonds v. State, Okl.Cr., 366 P.2d 111 (1961) and Mitchell v. State, Okl.Cr., 408 P.2d 566 (1965) and Richmond v. State, Okl.Cr., 492 P.2d 349 (1971). Defendant next alleges that the trial court erred by overruling his motion to suppress evidence which was illegally obtained.......
  • Hogan v. State, C-85-651
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • September 20, 1988
    ...Weapon was committed during the course of the robbery, and therefore petitioner cannot be convicted of both. Richmond v. State, 492 P.2d 349, 351 (Okla.Crim.App.1971). Accordingly, the convictions for First Degree Burglary and Assault with a Dangerous Weapon should be reversed and remanded ......
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