Riddle v. State

• Decision Date: 18 July 1962
• Docket Number: No. A-13153,A-13153
• Citation: 373 P.2d 832
• Parties: Joe Kenneth RIDDLE, 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 832

373 P.2d 832

Joe Kenneth RIDDLE, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-13153.

Court of Criminal Appeals of Oklahoma.

July 18, 1962.

Syllabus by the Court

1. Where charges are pending in State Court, and a charge pending in Federal Court for violation of the same crime under the Uniform Narcotics Act, charges in State Court should be stayed pending the outcome of the charges in Federal Court.

2. A motion for continuance on the ground a like charge is pending in Federal Court should be sustained under 63 O.S.A. § 421: 'No person shall be prosecuted for a violation of any provision of this act if such person has been acquitted or convicted under the Federal Narcotics Laws of the same act or omissions, which it is alleged, constitutes a violation of this act.'

3. The Legislature intended that a man be tried but one time for violation of a statute under Uniform Narcotics Act and the only way this can be guaranteed is to stay the proceedings until the Federal Case is disposed of. When acquitted or convicted by Federal Court, it constitutes a bar to the State from additional prosecution. Not so with Federal; an acquittal or conviction by State does not bar Federal prosecution.

4. A prosecution for the 'Possession of Marijuana' under State law does not preclude Federal prosecution for 'Unlawful Transfer of Marijuana', as two separate offenses are involved under the statutes though the violation allegedly arose out of one transaction.

5. Rebuttal evidence in a criminal case is that which is given by the State to explain, repel, counteract, contradict, or disprove evidence introduced by or on behalf of the defendant.

6. A trial court should not permit a rehash of witness' testimony given in chief under disguise of rebuttal. Counsel for the State had no more right to reserve the principal testimony and introduce it under the guise of rebuttal nor to re-hash testimony introduced in chief, than the accused would have to re-introduce his testimony after the State has closed the rebuttal.

7. Where State interrogates prosecuting witness as to why he was discharged from police department and then introduces former Chief of Police in rebuttal to verify his testimony and he says 'that officer was the finest narcotics officer in this part of the country', it constitutes improper rebuttal and is error.

8. 'Entrapment' is the planning of an offense by an officer or someone acting under his direction, and his procurement by improper inducement of its commission by one who would not have perpetrated it except for the trickery of the officer.

9. If an officer or decoy suggests the commission of a crime, or lures another innocent person to commit the crime, and the decoy performs an act essential to the crime, a conviction cannot be had, for that is entrapment.

10. Whether a defendant has been entrapped is to be determined by the jury, unless it can be decided as a question of law upon undisputed facts sufficient to establish entrapment. Where there is a conflict in the testimony the court does not err in refusing defendant's request for a directed verdict if submitted to jury with proper instructions.

11. Where there is a close question of entrapment, and prosecuting witness volunteers statement that 'I had bought from him before', it places defendant at a disadvantage with the jury and deprives him from having a fair and impartial trial.

12. The Court of Criminal Appeals will not condone or sanction voluntary statements by experienced officer which are designed for the purpose of inflaming the jury and prejudicing them against the defendant and where the record reflects that defendant is of previous good reputation, will constitute error.

Appeal from the District Court of Pontotoc County; John Boyce McKeel, Judge.

Joe Kenneth Riddle was convicted of Possession of Marijuana, and appeals. Reversed and remanded.

W. B. Ward, Jr., Ada, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam A. Lattimore, Asst. Atty. Gen., for defendant in error.

NIX, Presiding Judge.

Joe Kenneth Riddle, hereinafter referred to as defendant, was charged by information in the District Court of Pontotoc County. He was tried before a jury, found guilty, and sentenced to five years in the Oklahoma State Penitentiary.

Defendant lodged his appeal in this Court within the time prescribed by law, asserting 3 assignments of error. They will be discussed in the order which they appear in the brief.

Counsel for defendant first contends that the trial court erred in overruling his Motion for Continuance. The Motion for Continuance was on the grounds that a charge arising out of the same act was pending in the Eastern District of Federal Court and the case at bar should not proceed to trial until the case in Federal Court had been disposed of. His contention is based upon 63 O.S.A. § 421, which reads as follows:

'No person shall be prosecuted for a violation of any provision of this Act if such person has been acquitted or convicted under the Federal Narcotic Laws of the same act or omission which, it is alleged, constitutes a violation of this Act.'

Prior to trial, the defendant filed the following motion:

'Comes now the defendant, Joe K. Riddle, and shows the Court that he stands charged by Information duly filed in the District Court in and for Pontotoc County with the crime of 'Possession of Marijuana', this offense being governed by 63 O.S.A. § 451. Your defendant would further show the Court that he now stands charged by Indictment filed in the Federal District Court in and for the Eastern District of the State of Oklahoma at Muskogee, Oklahoma, with the crime of 'Unlawful Transfer of Marijuana', the same case being case Number 26,685 Criminal; a photostatic copy of said Indictment is marked Exhibit A and attached hereto. Your defendant would further show the District Court that he has been advised by his attorney of record in the above mentioned federal case, Mr. Paul Gotcher, Muskogee Oklahoma, that said case will be tried in the Federal District Court in and for the Eastern District of the State of Oklahoma during the month of September or early October, 1961. Your defendant would further show that the instant case is set for trial in the District Court in and for Pontotoc County on September 7, 1961. Your defendant would further show that 63 O.S.A. § 421 provides as follows, to wit:

"No person shall be prosecuted for a violation of any provision of this Act if such person has been acquitted or convicted under the Federal Narcotic Laws of the same act or omission which, it is alleged, constitutes a violation of this Act.'

'Wherefore, since a trial on this date of the above styled and number cause would avoid and evade the intention of the Legislature as set out in 63 O.S.A. § 421, your defendant would respectfully move this Honorable Court to strike the above styled and numbered cause from this trial docket and continue it to the next jury term upon which criminal cases will be tried.'

It is to be observed that the defendant was charged under the State law with 'Possession of Marijuana'. The Indictment returned against defendant in the Eastern District of Federal Court read as follows:

'That on or about November 16, 1960, in Pontotoc County, Eastern District of Oklahoma, Joe Kenneth Riddle transferred a quantity of approximately 37.450 grains of marijuana to Charles D. Casey, which said transfer was not made pursuant to a written order on a prescribed form as required by law.'

It is to be noted that charge by the Federal Government is a different charge from 'Possession of Marijuana', with which he was charged in the instant case. Though it arose out of the same transaction, he was charged with violation of a different crime.

In People v. Benenato, 77 Cal.App.2d 350, 175 P.2d 296, the California Court said:

'The same act may violate different statutes and thus constitute different offenses punishable under separate statutes and if one offense requires proof of an element different from the other they may not be deemed to constitute the same offense so as to preclude punishment for each, even though both offenses are founded chiefly on the same facts.'

Also see, People v. Owens, 117 Cal.App.2d 121, 225 P.2d 114.

The Circuit Court of Appeals 9th Circuit held in Bridges v. United States, 259 F.2d 611:

'A prosecution for unlawfully selling and dispensing a narcotic drug and fraudulently concealing and facilitating the concealment of such drugs unlawfully imported into the United States involved two separate offenses authorizing consecutive sentences even though violations allegedly arose out of one transaction.'

No doubt the Legislature intended that a man be tried only one time for a crime in violation of the Narcotics Act and the only way the defendant could be guaranteed this would be for the State to stay the proceedings until the case had been disposed of in Federal Court. Defendant could be acquitted in State Court and prosecuted for the same offense in Federal Court. However, if he were convicted or acquitted in Federal Court, it would be a bar to a prosecution in State Court. This statute would not be applicable in the case at bar because he is charged with different offenses.

The defendant further argues that the trial court erred in permitting a rebuttal witness to testify over the objection of defendant's counsel, in regard to the reputation of one of the State's witnesses. The arresting officer, J. D. Roberts, had been discharged from the Oklahoma City Police Department. This evidence was brought out by the state. On cross examination he was examined at great length on the reasons for the discharge. It seems Officer Roberts had been involved in an incident while he was on the police force, where a street light was shot out and a car was fired on. Roberts contended he was discharged because he refused to make a report on the incident. After the State rested and defend...