Miller v. Oregon
405 U.S. 1047
SCOTUS
1972
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*1 1047 Oregon. No. Miller 71-5560. Sup. Ct. Ore. Cer- v. tiorari denied. Doug-

Mr. Justice Brennan, joined by Mr. Justice las and Mr. Justice Marshall, dissenting.

Petitioner had a pistol on his person he when was ar- rested in Portland, Oregon, on January 28, 1970. Two prosecutions were brought against him based on this single act of possession. The first was complaint a filed January 29, 1970, for violation of § 14.32.040 of the Code of City the of Portland, which makes it a crime to carry a concealed weapon. The second was an indictment handed down April 20,-1970, for violation of Oregon Re- vised Statutes § 166.270, whch makes a felony it for “any person who has been convicted of a felony against the person or property of another” to carry a concealed weapon.

On April 29, 1970, petitioner the was convicted of the ordinance violation. He thereupon entered plea a of double jeopardy to the felony indictment. The plea was sustained in the trial court and the indictment dismissed. The Court of Appeals of Oregon reversed, 5 Ore. App. 501, 484 P. 2d 1132. The Oregon Supreme Court denied review.

I would grant the petition for certiorari and reverse. In my view the Double Jeopardy Clause applicable to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U. S. 784 (1969), requires the prosecution, except in most limited circumstances not present here, join “to at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, epi sode, or transaction.” Ashe v. Swenson, 397 U. S. 436, 453-454 (1970) (concurring opinion). Under this “same transaction” of test “same offense” the trial court properly sustained petitioner’s double jeopardy plea.