Johnson v. HamptonJohnson v. Hampton
- Reporters:
- , ,
- Before:
- Brett
Lead Opinion
OPINION
PER CURIAM:Petitioner was charged in the District Court, Tulsa County, Case No. CRF-75-690, for the offense of Kidnapping for the Purpose of Extortion in violation of 21 O.S. 1971
“. . said acts and killing being perpetrated by the said Kurk Kendall Johnson pursuant to, and as a result of, the commission of, or attempt to commit, the crime of Kidnapping for the purpose of Extortion . .
Thereafter, Petitioner filed in this Court a Petition for Writ of Mandamus, whereafter by Order of this Court oral arguments were held on the 1st day of March, 1976, and this Court assumed jurisdiction and allowed the parties time to brief the matter and stayed further proceedings in the Osage County District Court pending this Court’s disposition of the instant matter.
After having heard the arguments and studied the briefs, we are of the opinion that this matter presents a question of first impression in this State. The issue for resolution is whether or not the Petitioner’s prior conviction for Kidnapping for the Purpose of Extortion in Tulsa County is a bar to a subsequent prosecution for the offense of Murder in the First Degree in Osage County when the enumerated felony upon which the charge of Murder in the First Degree is predicated is Kidnapping for the Purpose of Extortion, the prior conviction.
The two statutory offenses, Murder in the First Degree as charged against Johnson, and Kidnapping for the Purpose of Extortion are two separate and distinct offenses as the elements of First Degree Murder include elements different and additional to those of Kidnapping for the purpose of Extortion. A First Degree Murder prosecution under
The evidence in the kidnapping case, Johnson v. State, Okl.Cr., 554 P.2d 51 (1976), established that Johnson kidnapped his victim in hopes of extorting a sum of money from the victim’s relatives. The objective of extortion changed to murder after the attempts to extort the money apparently failed. The evidence does not establish that the purpose of the kidnapping was murder, but only that the purpose became murder after Johnson’s extortion attempts failed and certainly the murder would also at least close the mouth of the one who could surely lead to Johnson’s apprehension. Different societal interests are protected by the statutory laws prescribing kidnapping for the purpose of extortion and homicide. Certainly then two separate offenses may be committed although the offenses are proximate in time.
Therefore, in the instant case Johnson may be prosecuted for Murder in the First Degree with the underlying felony being the commission of or the attempt to commit the offense of Kidnapping for the Purpose of Extortion, notwithstanding that he has been previously convicted of said underlying felony. No former jeopardy claim is sustainable as Murder in the First Degree is a separate and distinct offense protecting a different societal interest than Kidnapping for the Purpose of Extortion. Williams v. State, Okl.Cr., 321 P.2d 990 (1957), Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959).
For the above and foregoing reasons, our previous order entered on the 1st day of March, 1976, staying further proceedings in the Osage County District Court, Case No. CRF-75-294, is hereby VACATED, and the Petition for Writ of Mandamus is DENIED in accordance with the views expressed herein.
Dissenting Opinion
dissenting:
I respectfully dissent to this decision for the reason that as the information is laid it will become necessary to again prove all the elements of the offense of Kidnapping for the Purpose of Extortion prior to proving the alleged First Degree Murder. I believe, under the facts of this case, that the charge should be Murder in the Second Degree.