*1 Therefore, battery. justice I believe be modi-
requires that this sentence should in the from 10
fied confinement Penitentiary, year of 1 to one
State battery.
aggravated assault and STOCKTON, Appellant,
Donald Appellee.
The STATE of
No. A-17307. Appeals
Court Criminal of Oklahoma.
April 12, 1973. Hawkins, Sapulpa,
L. and Elmore G. Tulsa, Page, appellant. Gen.,
Lаrry Derryberry, Atty. H. Fred Muret, Anderson, Gen., Atty. Frank Asst. Intern, Legal appellee.
OPINION
BLISS, Presiding Judge:
post-
This is an
from denial of
conviction relief in
District Court of
County,
Creek
No.
Case
5090-C. Petition-
er,
defendant,
hereinafter
to as
referred
charged
in the District Court of Creek
County
Rape
with
the crime
subsequently charged with the offense of
Kidnapping in
District Court of Tulsa
County, Oklahoma,
rape arising
out of the
incident. De-
fendant,
by counsel,
being represented
en-
voluntary plea
tered a
in the Dis-
trict Court of Tulsa
for the crime
25, 1964,
February
Kidnapping
peni-
sentenced to a term the stаte
tentiary for
than fifteen
less
*2
than life. Defendant
5.That
defendant’s contention that the
more
and not
County
rape
County
in
for
in
con-
jury
Creek
Creek
before
was tried
punishment
the
and sentenced
stitutes double
Rape and was convicted
for
years on
in
ninety-nine
of
that
laws
Stаte
Oklahoma
to a
term
prior
April
conviction for
1964.
plea of
to a
rape
had entered a
applica-
filed his
subsequently
Defendant
kidnapping charge in
District Court
in
relief
the Dis-
post-conviction
tion for
County,
February
on
of Tulsa
and an
County
eviden-
trict Court of Crеek
25, 1964,
kidnapping
and
in
that said
was
February
was
on
tiary hearing
held
purpose
accomplishing
fact for the
repre-
was
1972, at
time defendant
which
rape and
in that
said
is without merit
At the conclusion
by
sented
counsel.
purpose
kid-
of the aforementioned
argu-
after
evidentiary hearing and
said
purpose
was
for
counsel,
es-
court
trial
made
ment of
rape
which
herein
defendant was
and
following findings of fact
sentially the
before
convicted. There is no evidence
law:
conclusions of
hearing
court in this
Post-Con-
upon
convicted
1. Defendant was herein
in the
viction Relief that
evidence
Rape in the
jury
the crime of
trial of
rape
that the
trial of this
case indicated
2, 1964,
April
according
Degree
First
on
purpose
Tulsa
in
herein which conviction
to the record
County
actually
was
and
has
apрeal,
on
there
was sustained
rape
County,
in Creek
nor does the evi-
contrary intro-
to the
been no evidence
in this hearing
dence
for Post-Convic-
hearing for Post-Conviction
duced at the
tion Relief
where the intention
indicate
Relief.
place.
to commit this
toоk
Further-
more,
been no evidence at this
that defendant
2. The record reflects
this
Post-Conviction
as to where
represented
counsel from
particular defendant’s,
Stockton,
Donald
appearance in court and
date
first
of his
rape originated.
intent
this
to commit
every
and no
appearance,
thereafter
reason,
For this
as far
this crime
contrary.
evidence was submitted
concerned,
in Tulsa
presented
3. No
in
evidence
rape alleged
and
in this case
Relief
in
hearing of Post-Conviction
for which defendant wаs
convicted
support
that
defendant’s contention
separate
far as
two
crimes so
the record
properly
and
had his case been
briefed
is concerned now.
prepared
the Court
Crimi-
court,
upon
findings
trial
based
fit
re-
Appeals would have seen
nal
law,
of fact and conclusions of
denied de-
verse
and remand same
the conviction
application
fendant’s
from
final or-
for new trial.
perfected
appeal.
der defendant
4. That the record of the trial reflects
kidnap
argues
Defendant
that the
parole
explanation
lengthy
no
eli-
ping
out of
and the
arose
the same
gibility
in
and
evi-
given,
fact
no
and, therefore, de
transaction;
criminal
at the hearing
dence has
introduced
been
punishment in
suffering
fendant is
support
in
Post-Conviction Relief
O.S.1971,
11. Defendant
violation of
defendant’s
the trial
contention
proposition
in his second
further contends
court committed
and basic
fundamental
put
jeop
that defendant has
been
twice
error
went
in that the trial court
into
ardy
liberty
or
for the same offense
of life
lengthy explanation
jury of
el-
to the
II,
of Article
of the Okla
violation
igibility
if defendant served
homa Constitution.
approximately
one-third of
procedure
argues
Pardon
The State
followed
separate
crimes
Parole
constitute two
Board.
charged,
negate
does not
lawfully
successiоn
the ultimate
which defendant
proof
re-
and convicted since the
fact that
crimes were commit-
tried
prima
open
hold
to establish
facie
ted. To
otherwise would
quired
persons
With
instance are dissimilar.
the door
to commit
each
simultaneously,
ele-
agrees. The
contention this Court
number
crimes
eliminat-
knowing they
ments of the
could be
could only
*3
”
stand,
ed and
conviction would
for one.’
rape could
and the
of the actual
elements
case,
In the instant
kidnapping
and the
convic-
be eliminated
alleged
information
that defеndant kid
tion would stand.
napped the victim “with the unlawful and
Okl.Cr.,
State,
case of
In the
Williams v.
purpose
felonious intent and
then and there
990,
421,
576, 3
321 P.2d
79 S.Ct.
358 U.S.
part
on the
defendant
that she
516, L.Ed.2d
Court and the United
transported
carried and
out of Tulsa Coun
Supreme
kidnap-
States
Court affirmed
ty
place
Oklаhoma to a
in Creek
subsequent
ping conviction of a defendant
against
Oklahoma
held
and
her will
at
and
arising out of
to his conviction for murder
the same
while overcoming
time
her resist
affirming said
the same
In
transaction.
force,
ance
said defendants were seek
Court hеld as follows:
* * *
ing
advantage
an
from said
to
“
* *
*
law
murder
defines
[T]he
knowledge
have
purpose
carnal
separate
as
and dis-
and
two
violating
chastity
her
and
How-
virtue”.
Therefore,
tinct offenses.
there would ever,
requirement
specific
to
intent
thing
merger
be such
as
of these
not
knowledge
seek
in
carnal
Furthermore,
separate offenses.
Okla-
charge
merge
offenses,
does not
the two
recognize
does not
homa
such doctrine.
and the elements of the two offenses main-
urged
is
It
further
omitted.]
[Citations
independent
tain sufficient
characteristics
crimes arise
these
out of the same trans-
separate
retain
status as
their
and dis-
action; but such fact
result in a
will not
tinct
making
crimes.
true test of
dou-
separate
of these
merger
and
of-
distinct
jeopardy
ble
ban is
a
whether the evidence
Although
fenses.
[Citation omitted.]
necessary
support
a second information
consequences
certain
may follow from
pronounce
would
sufficient to
legal
prohibited acts,
nec-
certain
but are not
State,
conviction on
first.
v.
Jackson
essarily the result
prohibited
of such
523,
11 Okl.Cr.
148 P.
in-
1058. In the
acts, each of
may
prosecuted
said acts
fails,
stant
test
plea
case the
and a
dou-
separate
and
of-
and distinct
ble jeoprardy will not be
Kid-
sustained.
fenses, when
In
so defined
statute.
rape are
and
two
offens-
case,
punishment
such
imposеd would es. The
prop-
defendant’s first and second
punishment.
constitute
therefore,
are,
ositions
without merit.
* *
Defendant contends that the
instant
State,
In the recent case
of Starnes
directly
point
is
with the
recent case
Okl.Cr.,
920,
citing
P.2d
this Court
Okl.Cr.,
Ramey,
Householder v.
P.2d
State,
Okl.Cr.,
Callins v.
492 P.2d
247, which holds thаt where a defendant
held:
convicted
robbery
offenses
“The
of armed
value,
extorting
thing
namely
separate,
offenses;
are
distinct
victim,
elements of
robbery
sepa-
armed
and those
of the
he could not be tried
rape in
degree
the first
dissimi-
quite
are
rately
raрe which
an
for the
is
incident in-
In the
lar.
recent case of Tucker
cluded within
crime for which he was
State, Okl.Cr.,
481 P.2d
stated:
we
The facts in
convicted.
essentially
are
instant case
identical.
‘We
that the fact
rapid
above,
crimes
Therefore,
were committed
the reаsons set
out
might
occur i.s also for
Ramey,
specific-
is
when it
supra,
Householder v.
There
a lot mis-
them to determine.
is
ally overruled.
it,
event, a
information about
contention
final
Defendant’s
at
person
up
comes
impartial
a fair and
was denied
sentence,
wherе the
the end of
1/3
explained
pa
judge
the trial
trial when
Now,
time.
sentence is
at definite
fixed
re
jury. The record
procedure
role
where the sentence
a life sentence
had
to de
jury
after the
retired
flects that
place
docketing
compulsory
takеs
asked the
liberate,
jury
the foreman
has not
years, if he
end of 16
time was re
explain how much
court to
time,
paroled
to that
prior
been
defendant would
be served before
quired to
be,
Board
if the Pardon and Parole
court, after
parole. The
eligible for
eligible
determines that
prosecutor
defense
conferring with the
then,
Now,
everything
that covers
same.
*4
defense
objection of
counsel, and without
you
up
all
here a minute.
come
but—
following explanation to
counsel, made the
(Out
hearing
jury)
of
of
That covers
jury:
the
but
sentence
anything
the indeterminate
law,
given
that wasn’t
to
I believe
them.
a
Ordinarily this is
“THE COURT:
eventuality
every
this
that could
covers
answer,
the
but
question that
couldn’t
I
type.
occur in a case of
Is
tell
agreed that
could
attorneys have
I
any
answer
question
further
that I can
might state before
you
manner. I
in this
at this
?"
time
fact,
verdict,
your
do,
of
I
as a matter
expected
be
objected
any
be
to made
If
counsel had
to
might
such
it
defense
as
information; however,
explanation
parole procedure,
I
of
the
the
without
is
explanation
the rule Oklahoma
above oral
the trial court
you
will tell
that
ex-
this;
ordinarily the
reversible
use
would constitute
error. French
that
However,
State, Okl.Cr.,
parole’ is sort of
pression ‘eligibility for
v.
157
requirements
statutory
Feb-
charge
on
der
of Section
kidnaps
If
25,
Subsequently, he was tried
a man
his victim for
ruary
11.
1964.
such,
rape
rape,
and convicted
charge
convicted of
on
3,
reasonably
rape
April
it
cannot
that the
such on
1964. Since
jeopardy plea
thе subse-
offenses.
did not raise a
charge, claiming the
quent trial on
apparent
It is
from
facts
scanty
not
bar,
jeopardy
was a
presented
in this case if the
was an
com-
and cannot
he waived that defense
so,
kidnapping.
If
included incident
Zeligson,
parte
plain
lаte date. Ex
at this
proper
11 would
been a
de-
Section
have
45,
v.
(1930).
47 Okl.Cr.
“where defendant is convicted of extorting thing of
ping purpose of val- victim,
ue, being rape of the cannot be is an separately which
tried the crime for
incident included within FOTHERGILL, Appellant, at 247. 485 P.2d John D. which was convictеd.” had been convicted Since purpose of for the Appellee. The STATE of O.S.1971, 745, it was concluded No. A-17373. again be tried subsequently
he could not Appeals of Oklahoma. of Criminal Court an essential rape, which was April 9, 1973. his conviction incident rape. simplistic and kid- analysis deceiving. different offenses they are different de- Of course offenses But
signed criminal acts. to meet different
if one essential criminal trans-
action, incidentally violates more crim- statutory prohibition,
than one only un-
inal once action can