*1 are, hereby cations and the same are re-
versed, naught. set and held for aside is, therefore,
It the order of this Court appellant family be returned to her in- be,
stanter, petition herein prejudice hereby,
same is dismissed with
and the court below directed to enter an days
order within of the date of this
Opinion directing payment of a and Order attorney’s public expense
reasonable fee at appellant prosecution
to counsel for appeal.
of this
BUSSEY, BRETT, JJ., concur. KITE, Appellant,
Roderick Lee Appellee. Oklahoma,
The STATE of
No. A-16086. Appeals
Court of Criminal of Oklahoma.
Feb. 1973.
Rehearing March Denied
LSD. He identified the by exhibit the lab- oratory number and his initials. Kane September testified that on John he working 1969 was as an undercover for the City officer Oklahoma Police De- partment. At approximately p. 5:00 m. he telephone had a conversation with the de- fendant and asked him if any he had “acid” to sell. defendant advised Kane that he did. At approximately 5:25 m., p. the defendant arrived at a residence 16th Street where Kane N.W. waiting. He and the defendant had con- concerning quality versation agreed LSD. Kane ten (10) Fifty tablets for Two Dollars and Cents ($2.50) per pulled tablet. The defendant pocket out small box and said he (7) seven tablets with him. had Kane defendant the amount of Twenty-five ($25.00) Dollars and the de- promised return with the re- three At maining tablets. p. the defendant
9:00 m. returned (3) livered the three tablets Kane. Aft- McConnel, appel- City, for Ed Oklahoma left, the defendant Kane to a went lant. turned prearranged location and the tablets Gen., Atty. Larry Derryberry, Sondra identified over to Detective Burns. He Gen., Atty. appellee. Fogley, Asst. Leah pur- the tablets Exhibit One as State’s chased from the defendant. OPINION cross-examination, Kane testified On BUSSEY, Judge: prior September 18 he made a with the defendant “contract” Kite, Appellant, Roderick Lee hereinaf- purchasing fifty (50) tablets. He further defendant, charged, ter to as referred police re- that he did not testified tried and in the District Court convicted de-, recall him and did not all port with CRF-69-2386, County, Oklahoma No. Case prior denied transaction. He tails of aof for the Sale offense Unlawful purchased tablets he from (10) ten at punishment fixed Stimulant. His part constituted the defendant on imprisonment years fine (5) five fifty tablet contract. (50) One Thousand ($1,000.00), Dollars sentence, timely from said Burns testified Detective perfected appeal has to this Court. been Kane on surveillance on Officer working m., p. :25 At about 5 question. day McAuliff, trial, a chemist theAt John subject arrived and another the defendant Bureau Investi- Oklahoma State where l'6th N.W. residence a thin gation, testified that conducted returned waiting. The defendant test on one of layer chromotography A p. m. again about the residence laboratory for tablets submitted to later, at a he met Officer time short September analysis on 1969 Officer (10) ten received prearranged location lysergic positive for The test was Burns. State’s He identified from him. tablets commonly known diethylamide, following day, Fifty ($50.00). he re- Dollars as the tablets which Exhibit One ten subsequent- (10) he delivered the from Kane and ceived Twenty-five Dollars to Kane and received ly Bureau of Investi- delivered to State sold He testified that he had not gation Laboratory. ($25.00). and that called as a defense Steve Meador was *3 the he delivered to Kane were ob- tablets that he a court witness and testified was persons. tained other from reporter Meter. He testi- Judge Van called in rebuttal Kane was Officer given transcribed the evidence fied that he the that on the he advised testified prior in a trial wherein Officer Kane buy Hun- defendant that he wanted to One Illegal the was convicted of Sale defendant worth of ($100.00) dred Dollars prior trial, At the Officer of a Stimulant. paying ($2.- Dollars and that he Two was ap- that on Kane testified him a tablet. The advised 00) p. to the proximately 1:45 m. he went for Three Dollars selling that was LSD parking David lot of Inc. with they a tablet on the street ($3.00) building into O’Brien went the O’Brien. price Dollars compromised on the of Two the parking and returned to the lot with the $2.50). Fifty Cents He obtained defendant. He had a conversation with thirty-one tablets from the defendant concerning purchasing the defendant LSD. the told him to come back He advised the defendant that he would give and he would him the dis- buy fifty they like tablets and (50) shop that returned to the nine tablets. He settling finally cussed the on Two afternoon, Fifty Dol- gave the defendant Fifty per Dollars and Cents tablet. ($2.50) lars and received nine tablets. gave thirty-one The defendant him (31) going to him that was advised gave Fifty the defendant tablets and Kane get Aspen, later that week to Colorado ($50.00). Dollars The defendant advised able to might that he be some LSD and pick up “the that he would be able to cheaper in the future. On sell it to him a rest of it” at later date. On cross-exam- September 18, advised him the defendant ination, he testified that he told the de- “real the tablets delivered were buy fendant he wanted to Hundred One good” good a name for “he had because they agreed ($100.00) Dollars of LSD and going selling good acid and that he wasn’t price Fifty on the of Two Dollars and anything destroy that name.” to do per tablet. The defendant ($2.50) Cents (Tr. 109) give his “acid” advised O’Brien and stated that he could some more. surrebuttal, testified In the defendant Fifty ($50.- He the defendant gave Dollars that he that he tell did not and told him that he would come back
00)
rather
going Aspen
was
LSD
pick
later and
the rest of it.
going.
stated that he had a friend who
defendant testified that he was con-
first
asserts
in the
case and received a
victed
refusing to rule
the trial court erred in
five-year sentence. He testified that he
a matter of law that defendant
the
first met the defendant
17th behind
on
of
subjected
are
jeopardy.
to double
We
clothing
where he worked. Kane
the
store
properly
opinion that
trial court
the
the
purchase fifty
told him that
wanted to
refused to rule that the defendant
sub
they agreed
LSD tablets
(50)
jected
double
as a matter
jeopardy
Fifty
($2.-
Dollars and
Two
Cents
law. Officer Kane testified
per
thirty-one
obtained
50)
tablet. He
separate distinct sales of
were two
from
them
(31) tablets
O’Brien
wherein the defendant testified there
Kane, receiving Fifty
($50.00)
Dollars
testimony raised
conflicting
one. The
day,
Later that
he delivered
return.
jury
the
question
of fact for
submitted to them.
properly
and received
West
tablets to Kane
nine more
pleas passed upon
jury
stat-
both
the
P.
we
24 Okl.Cr.
properly
pro-
Syllabus:
judgment can
before
paragraph of the
the first
ed in
entered,
nounced and
plea
of form-
“Upon
interposing of
jury
if
conviction will be reversed
in the trial
fails
find
verdict
the latter
arises,
case,
ordinarily
question
fact
unless the record shows
it was
jury
be submitted to
which should
waived or withdrawn.”
determination, unless the court
plea
In the
does not re-
instant
record
of law that
satisfied as a matter
requested
flect that the defendant
the court
to raise
interposed is insufficient
jury
to submit verdict forms
In such
question
jeopardy.
of former
issue
“former
The record
conviction.”
not
for the court to
event
error
object
reflects that
defendant did not
plea
jury
to the
submit said
refuse to
*4
the
the jury.
to
verdict form furnished
it
insufficient.”
question
as a
of law is
jury
The
instructed the
as follows:
court
in-
the trial court
In the instant
“ * * *
you
Should
determine from
assert-
jury
formed the
that the defendant
the
in
the
evidence
this case that
same
former
to
ed the defense of
necessarily will sustain a con-
evi-
evidence
introduction of the defendant’s
the
acquittal
or
as
of
properly in-
viction
to both
these
The
court further
dence.
trial
informations or entertain a reasonable
jeopardy.
as
former
jury
structed the
to
thereof,
you
doubt
and in that event
then
previously
have
held that where there
We
acquit
and
should find for the defendant
competent
in
is
evidence
the record from
However,
you
him.
should
find that the
jury
reasonably
the
could
conclude
which
charged in each
is a
charged,
offense
information
guilty
that the defendant was
as
act,
separate and distinct criminal
trans-
ver-
not interfere with the
this Court will
action
of
or omission
the evidence
though
sharp
is a
conflict
dict even
necessarily
one will not
sustain the oth-
inferences
in
evidence and different
the
er,
event, you
then
in that
should
the ex-
may
therefrom since it is
be drawn
against
find
the
weigh
state
the
province
jury to
the
clusive
of the
the
a
fendant on
defense raised of
form-
determine the facts.
v.
evidence and
Jones
Okl.Cr.,
State,
conviction.”
had a with con conversation Mr. Kite same, tending establish the and the acid, cerning dealing selling in in right State has the its to extend cross- people? other examination to show defendant type sir, person Yes, not the who would have “A. we had a conversation ”* * * entrapped. to be needed while back particu- we were in this one lar room I and asked him if he could sell is, accordingly, and sentence cheaper more at a price, acid less Affirmed. $2.50, than he advised me he
might BLISS, J., be able to. That he P. concurs. going Aspen, Colorado, Friday I believe was BRETT, J., dissents. going that he said would able score or to [sic] BRETT, Judge (dissents). for about tablet and that $1.00 respectfully I this decision. dissent to bring could back worth of acid City. jeopardy based on the sell in Defendant’s claim is
951
evening de-
9:00 that
At
agree-
one
that there
argument
three tab-
fendant returned
September 17th for
into on
ment entered
lets.
quantity of
a set
to sell Kane
that the sale was
a set
for
permit
prosecu-
LSD
two
does not
law
install-
delivery in
completed with
two
single
punishment for
tions
double
17th,
ments,
September
Constitution,
of 31 tablets on
one
Oklahoma
criminal offense.
delivery
final
of 10 tablets
21
O.S.1971,
O.S.
II,
22
14.
Art.
§
§
day.
a sin-
following
Defendant contends
charges
1971,
11. “A series
criminal
§
cannot be divided
gle sale to
customer
cannot,
system jurisprudence,
under our
prosecutions simply
separate
two
allow
act or
upon the same criminal
be based
because the
amount
transaction;
act cannot
in
installments.
delivered
two
Since
or more
split
into two
up
or subdivided
fendant was convicted and sentenced for
prosecuted as such.”
distinct offenses
Kane,
September
sale of
LSD on
permitted to
Thus
“state will not be
jeop-
defendant asserts that conviction is a
into divers
split
an offense
or divide
separate prosecution
bar
ardy
and con-
v.
parts
moiety.” Estep
punish each
completion
viction
103,
64,
sale
108,
143 P.
11 Okl.Cr.
believe defendant’s
18th. I
con-
State, 34
(1914);
v.
Okl.Cr.
Hochderffer
tention is
215,
correct.
218,
Heldenbrand
(1926);
their that Kane would come an this In that case defendant issue. pick purchase.” back “to the rest met P.M. officer at 9:00 undercover Kane stated: exactly “I’m not sure how spoon of heroin for a sale discussed $30 sir, more, supposed up.” much to pick I was officer (approximately grams). day, September 18th, The next of- then spoons. asked Defendant for five Inc., spoons for Kane called fered an additional five the defendant at to sell spoons. for ten and told a total cost of to come over $250 1304 N.W. spoons to 16th about then delivered five 5:30 with the remainder of the Defendant Kane, phoned purchase. The officer later According to officer. meeting at arranged second arrived and fendant and Kane seven tablets with five defendant delivered understanding that he would 11:00 P.M. where be back convict- The defendant was spoons. little while tablets. more transaction, heroin, ed for two sales one at was but 9:00 P. one a sale to one cus- appeal given M. and one at P.M. tomer for a amount at a set On completed meetings court held transac- there was but a with three within 32 tion, evidence, allowing only sup- one conviction. As I it will hours. view this port for an unlawful but one conviction Supreme The California Court held: Consequently, sale of I believe the LSD. “Although the number of may deliveries judgment and sentence in the instant case determining
be relevant in the number of There- should and remanded. reversed committed, crimes it not conclusive. fore, I must dissent to this decision. The entire transaction must be consid- ered. To find that the two deliveries crimes,
this separate case constituted necessary independent
would be to attach significance
criminal to the bifurcation delivery, a circumstance that had
nothing petitioner’s culpabili- to do with
ty. agreed upon Since one petitioner outset since intended from the outset to sell Robertson either Clyde NUBINE, Appellant, spoons spoons ten or five $250 $150, he intended to make but one sale. Appellee. Oklahoma, The STATE of Moreover, that sale was not carried out A-15938. No. over such period an extended of time posed the bifurcation of delivery Appeals Court Criminal of Oklahoma. separate, independent dangers. Under 6, 1973. Feb. circumstances, legitimate these penal no Rehearing Denied March purpose would be served ... permit prosecutor to carve trans-
action into two crimes. principle multiple
“The basic that forbids
punishment act
precludes infliction of more punishment present
than one Se-
ries of acts directed toward one criminal
objective, sale of heroin to one
customer.”
From a review of the facts apparent me
agreement between Kane and the defend-
ant quantity to sell a at the USD
price of a tablet for worth of $100’s
LSD, or a total of 40 tab- agreement
lets. This was entered into on 17th in front of Inc.
Since at that time the defendant had with tablets, it was tablets, complete pur-
chase, would exchanged following
day. day, September 18th, theOn next
fendant delivered the balance of the tablets agreement. accordance with their This