Smith v. State
| Decision Date | 23 June 1971 |
| Docket Number | No. A--15924,A--15924 |
| Citation | 486 P.2d 770 |
| Parties | Lovell SMITH, 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 |
Syllabus by the Court
1. Where a defendant employs a knife in the commission of a robbery inflicting wounds on the victim, the defendant's conviction for assault and battery with a deadly weapon with intent to kill is a bar to prosecution for robbery with a dangerous weapon arising out of the same event as the offenses were incident to but one objective.
Appeal from the District Court of Oklahoma County; Ben La Fon, Judge.
Lovell Smith was convicted by jury verdict of the crime of Robbery with a Dangerous Weapon, After Former Conviction of a Felony, sentenced to fifty (50) years imprisonment; and appeals. Reversed and remanded with instructions to dismiss.
Don Anderson, Public Defender, Oklahoma County, for plaintiff in error.
G. F. Blankenship, Atty.Gen., Hugh H. Collum, Asst. Atty. Gen., for defendant in error.
Plaintiff in error, Lovell Smith, hereinafter referred to as defendant, was charged by information with the crime of Robbery With a Dangerous Weapon, After Former Conviction of a Felony in the District Court of Oklahoma County, Case No. CRF--69--2849. Defendant was tried by a jury which found him guilty as charged and fixed punishment as Fifty (50) Years imprisonment. Judgment and sentence in accordance with the verdict was imposed on March 9, 1970, and this appeal perfected therefrom.
The issue for determination is whether the defendant may be convicted for assault and battery with a deadly weapon with intent to kill, and, also convicted and punished for robbery with a dangerous weapon where both charges arise out of the same event.
Briefly stated, the evidence establishes that on November 23, 1969, George Pogue, while operating his cab, picked up a passenger--identified as the defendant--who directed him to several locations. After picking up a girl at one of the stops and directing Pogue to still another location, defendant, while in the back seat, stabbed Pogue in the neck and demanded his money. Pogue drove on at defendant's threat and was stabbed twice in the chest by the defendant after he had again demanded money from Pogue. Pogue passed out and upon regaining consciousness noticed that the defendant and the girl were gone.
As a result of this encounter, the defendant was charged with the offense of assault and battery with a deadly weapon with intent to kill, after former conviction of a felony in the District Court of Oklahoma County, Case No. CRF--70--931. He was found guilty and sentenced to seventy-five (75) years imprisonment with judgment and sentenced imposed on July 1, 1970. This conviction was affirmed on appeal to this Court, Case No. A--16,214, on February 24, 1971. Smith v. State, Okl.Cr., 481 P.2d 804 (1971).
Additionally, defendant was also charged with the offense of robbery with a dangerous weapon, after former conviction of a felony in the District Court of Oklahoma County, Case No. CRF--69--2849. He was tried, convicted, and sentenced to fifty (50) years imprisonment which is the subject of this appeal. Both charges arise from the same event on November 23, 1969, at which defendant threatened George Pogue with a knife, demanded his money, and stabbed him.
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 * * * but in no case can he 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.'
Recently, in Shackelford v. State, Okl.Cr., 481 P.2d 163 (1971), this Court construed Section 11, nothing the California construction of an identical statute, holding that:
'If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' 481 P.2d at 165.
Under the circumstances in the Shackelford case, this Court ruled:
'A defendant convicted of robbery by firearms cannot be additionally convicted and sentenced for possession of the narcotics taken in that robbery where the evidence shows there was but one criminal act which incidently violated more than one statute.' 481 P.2d at 164.
Even more recently in Lawson v. State, Okl.Cr., 484 P.2d 900, (1971), this Court found that under Section 11, the defendant's conviction for first degree burglary was a bar to his prosecution for robbery with firearms arising out of the same event, holding that:
'(T)he Statutes prevent multiple punishment, under different sections of the Statues, for several crimes committed during one criminal transaction.'
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People v. White
...for crimes arising during a single transaction. See, E.g., State v. Corning, 289 Minn. 382, 184 N.W.2d 603 (1971); Smith v. State, 486 P.2d 770 (Okl.Cr.App., 1971); In re Henry, 65 Cal.2d 330, 54 Cal.Rptr. 633, 420 P.2d 97 (1966).8 The Alaska formulation focuses on the quality of difference......
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...separate from the robbery. 2 Petitioner argues that the cases of Bray v. Page, 494 P.2d 339 (Okla.Crim.App.1972) and Smith v. State, 486 P.2d 770 (Okla.Crim.App.1971) compel a different result. We disagree. Bray and Smith each involved a defendant who was charged with two criminal acts aris......
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