Shackelford v. State
481 P.2d 163
Okla. Crim. App.
1971
Check Treatment

*1 concedes, error, likewise, merit, and the Court ment of is The State without prin- repeatedly agrees, that this is a well established for we have held that: law, where, as the instant ciple of question punish- ‘The of excessiveness of case, undisputed that there was evidence an study ment must determined weapon dangerous assault was made with a all the facts and circumstances each contends trial that and the defendant on case, particular and the Court Crimi- or shooting the was either accidental com- power Appeals does not have the to nal self-defense, necessary and the mitted modify we can consci- a sentence unless properly jury the to court instructs relative that under all facts and entiously say theories, duty it then becomes the these sentence is so exces- circumstances the determine the con- jury weigh to and of the as to shock the conscience sive flicting In the instant un- evidence. court.’ submitted, no the facts there was evi- der Okl.Cr., State, 404 P.2d Rue v. La See any degree to to raise dence which tended Okl.Cr., State, 386 P. v. 73 and Johnson included offense and the issue of a lesser 2d 336.” hold that trial court therefore we must forth, arewe above set the reasons For give to an instruction failing did not err in and sen- judgment opinion that of the Battery. offense of Assault and on the be, and should appealed from tence assignment part the same As a hereby, affirmed. is same error, urges counsel for the defendant that the opinion that if this Court is of the NIX, BRETT, J., concur. J.,P. revers not be judgment and sentence should ed, should Running years. to term of

modified a lesser brief,

throughout the course of counsel’s unique here argued that facts

presented, imposition maximum ap years

sentence five excessive parently given as a result of bias SHACKELFORD, Bob Gerald carefully prejudice. have examined We Error, Plaintiff in nothing find contained the record and any way reflect therein which would Oklahoma, Defend The STATE of injected into prejudicial that matters were in Error. ant might preju biased or the trial which have No. A-15339. jury against defendant. Our diced the of the evidence leads us examination Appeals of Oklahoma. Criminal intentionally the defendant conclude 10, 1971. Feb. deadly weapon, Hines with a assaulted Mr. The fact or excuse. justification without a result did not

that the die victim any inflicted was not due injury defend him the

mercy grace or shown

ant, to her may be attributed but rather marksmanship. poor

relatively was

event, observe that we does provided by range law

within As of the Court. the conscience

not shock Ok.Cr., in Ransom stated we

P.2d 301: punish- that the is next contended

“It assign- This imposed is excessive.

ment *2 Defender, Anderson, for Public

Don plaintiff error. Gen., Robert D. Atty. Blankenship,
G. T. Intern, defendant in er- Nelon, for Legal ror.

NIX, Judge: error, Plaintiff Shackel- Bob Gerald ford, defendant, referred to as hereinafter was tried in the and convicted District County for crime 35,- Narcotics, Case Possession of No. 058. im- From sentence posed 29, 1969, April fixing punishment on $1,000.00 years imprisonment at five and a fine, appeals. defendant The evidence indicates that on the after- 28, 1968, men, September noon of two gun, with a City robbed an Oklahoma pharmacy of narcotics. Ten minutes after hearing a police radio broadcast about the robbery, a police began following officer an automobile driven a woman with two male passengers. following After automobile for about five miles ob- serving violations, traffic the officer stopped occupants, including the car. The defendant, weapons were searched for and on the the car floor of was a sack containing packaged narcotics taken in the robbery of pharmacy. The arrest and search revealing the narcotics was within thirty minutes of the Defendant was identified as one of the robbers of the pharmacy.

As a charged result defendant was with robbery with firearms and possession narcotics. Defendant was tried first robbery charge convicted on the and sen- twenty years imprisonment. tenced to The appeal. on conviction was affirmed State, Okl.Cr., 473 P.2d Shackelford v. tried Subsequently, defendant was and con- * * If which is *. all narcotics offenses possession of for victed incident objective, to one the de- appeal. this subject of punished fendant one of can defendant whether question The such offenses but not for than more robbery and for the lawfully punished Cal.Rptr. one.” 9 357 P.2d at possession punished for additionally *3 843-844. issue robbery. The in the taken narcotics amplification in the classi- Further jeopardy of this former statute was not one of is People McFarland, statute made in express v. find an 58 meaning as we Cal.2d cal 748, O.S.Supp. 473, 21, Cal.Rptr. 26 (1962): Title 376 P.2d 449 determinable. to be part:1 1970, 11, in relevant provides § divisibility of a of course con- “[T]he depends upon is made duct objec- which the intent and omission act or “[A]n ways by defendant; different tive if in different all the punishable may punished offenses are incident to objective be one provisions of this code * * * punished defendant provisions, be for either such one under under them but for punished he be not more than one.” 26 in no can case but 480, Cal.Rptr. one; acquittal or con- at 376 P.2d at and an 456. than more one, either under viction Alabama has a similar statute and has or act for the same prosecution bars the adopted interpretation California’s in Neal any other.” under omission State, supra, McFarland, v. People v. supra, in prohibiting punishment under speaks that this significant It is more than one single statute for a criminal jeop- the double while an “act or omission” State, transaction. Wildman v. 42 Ala. a speaks of conviction or ardy prohibition 357, App. 165 (1963). So.2d 396 Wade v. being a bar to acquittal an “offense” State, 400, 42 Ala.App. 166 739 So.2d “of- for the same prosecution another (1964). different If an “act” violates two fense.” laws, “offenses” dou- under may be two against The statute double 11 interpretation, but Section jeopardy ble Arizona, 13-1641, was enacted in A.R.S. § being punished more prohibits single act from the California Code and Arizona different statutes. than once under adopted courts have the same construction. Ballez, 174, State v. 102 Ariz. 427 P.2d 125 provi- of this identical The construction (1967). Kansas has also held that “two 654) Penal Cal- (California sion Code § separate offenses cannot be carved out of sound we believe ifornia courts delinquency.” the one criminal State v. State, 55 Cal.2d persuasive.2 In Neal v. Gauger, 515, 200 Kan. P.2d (1968). 438 455 11, 607, (1960), Cal.Rptr. 357 P.2d 839 9 The courts of Utah have also held a de- 823, the Su- denied certiorari U.S. 365 punished fendant cannot be for two offens- ruled preme of California arising es out the same act. State v. the defendant could not 654 that Section Little, 53, 2d 19 Utah 426 P.2d 4 (1967). attempted arson punished murder and for gasoline into an oc- where he had thrown case, regard to the With instant ignited it. In Neal the cupied home and clearly possession charge facts show held: court nothing involved more than the narcotics found at the arrest scene which were taken only applied been not “Section 654 has in the The evidence shows essen- in or- there was but one ‘act’ where * * * tially incidently one criminal act which vi- dinary where a sense but also olated more than one statute. Both offens- conduct violated more than course of previously quoted portion 2. held California 11 was Oklahoma has of Section 1. The persuasive 21, highly involv- Myers, formally in matters cases of Title Section 23 Legislature ing Harness v. in similar statutes. 11 added Section (1930); 147, 1970, P. Lester 288 285 Laws 143 Okl. Sessions 1970. (1921). 143, Smith, Chapter 199, page 200 P. 780 83 Okl. v. 166 distinguishable This case also from act and the criminal part of one es were Ryan Okl.Cr., (1970), P.2d 322 for either but 473 punished may be defendant in that in the instant occurred arrest for not both. and, pursuit; conclusion of the Quinn, 61 point People Cal.2d clearly narcotics found the car (1964). 551, Cal.Rptr. P.2d 705 393 however, robbery; fruits of armed Quinn was one defendant In that case case, supra, the Ryan the narcotics were Francisco a San two men who robbed apartment found defendant’s several narcotics. The taking cash and pharmacy robbery hours after the was committed. held: Supreme Court California distinguishable recent Another case from sentencing “The trial court also erred State, Okl.Cr., one is instant Tucker v. to concurrent sentences defendant (1971); he P.2d 167 wherein was con- possession degree first *4 kidnapping. victed for Tucker committed *** present In the narcotics. store,1 robbery drug of armed a after narcotics, the possession of the theft and separate which he also committed the robbery money, and the the theft of the independent kidnapping. act act of The criminal part all of an indivisible were kidnapping comple- was committed at the transaction.” robbery, tion armed when Tucker the Accordingly, accompany ordered the him pharmacist to be reversed and remanded

herein must in flight robbery. from of his the scene the to with instructions dismiss. by Both convictions were affirmed this being separate independent Court as BRETT, concurring. specially J., view crimes. This is consistent with the expressed California view in matter the BUSSEY, dissents. J.,P. styled, Chapman, 385, Re 43 Cal.2d 273 817; P.2d in which was cited Neal v. concurring). BRETT, Judge (specially State, supra, page Cal.Rptr., at in at 612 9 opinion of this in the results I concur page supra, Chapman, 844 357 P.2d. In found in that the narcotics for the reason robbery the defendant committed armed robbery part car of the armed the of- The assault. Neal decision stated with is an inte- alleged “possession” The fense. Chapman: reference to not I am gral part the armed held that when the is not assault “[W]e part the decision offended that perpetrating robbery a the means 11, Cal.Rptr. 55 Cal.2d 9 Neal that after an act follows the (1960), P.2d Califor- 357 839 wherein completed guilty defendant is Supreme nia the Califor- Court construed punishable two acts.” charge of ar- prohibiting nia statute as attempted after conviction. son murder construction, accept I not but I do weapon The arson the means—or was construe the Statute include attempted, —by the murder was which conduct”, a reference to “course of as attempted had been same if the murder Court seems to its California construe pistol. by shooting the victim with intent of statute. believe the the statute I is: are committed— If two criminal acts However, not 21 I do construe O.S. separate independent which are acts— Supp.1970 to a 11 allude “course § pro- for the second act is not speaks section sin- conduct”. That 11; how- O.S.Supp.1970 and, scribed 21 I believe where more than one gular; § ever, separate charged un- each act can punishable separate independent act— committed, statute, is a independent only der there whether statutes—is those acquittal, though even necessarily by the conviction or are not covered acts To add to violate several statutes. consideration. statute under Robbery Affirmed; (1970). 332 See P.2d Armed places a conduct” “course of numerous the commission premium on e., price

crimes, “many crimes i. or fall will stand Finally, each case

one”. therefore, merits; concur in I

on its own decision, the reason of this

the results

stated. Error, TUCKER, Ray Plaintiff

Darrell Oklahoma, Defend-

The STATE Error. *5 ant in

No. A-15425. Appeals of Oklahoma. Criminal 3, 1971.

Feb.