Where petitioner had been convicted of felony murder based on
his companion's killing of a victim during the course of an armed
robbery, the Double Jeopardy Clause of the Fifth Amendment barred a
separate prosecution of petitioner for the lesser crime of robbery
with firearms, since conviction of the greater crime of murder
could not be had without conviction of the lesser crime.
Certiorari granted;
555 P.2d
76, reversed.
PER CURIAM.
A clerk in a Tulsa, Okla., grocery store was shot and killed by
a companion of petitioner in the course of a robbery of the store
by the two men. Petitioner was convicted of felony murder in
Oklahoma State court. The opinion of the Oklahoma Court of Criminal
Appeals in this case states that,
"[i]n a felony murder case, the proof of the underlying felony
[here robbery with firearms] is needed to prove the intent
necessary for a felony murder conviction."
555 P.2d
76, 80-81 (1976). Petitioner nevertheless was thereafter
brought to trial and convicted on a separate information charging
the robbery with firearms, after denial of his motion to dismiss on
the ground that this prosecution violated the Double Jeopardy
Clause of the Fifth Amendment because he had been already convicted
of the offense in the felony murder trial. The Oklahoma Court of
Criminal Appeals affirmed.
When, as here, conviction of a greater crime, murder, cannot be
had without conviction of the lesser crime, robbery with firearms,
the Double Jeopardy Clause bars prosecution for the lesser crime
after conviction of the greater one.
* In
re
Page 433 U. S. 683
Nielsen, 131 U. S. 176
(1889);
cf. Brown v. Ohio, 432 U.
S. 161 (1977).
"[A] person [who] has been tried and convicted for a crime which
has various incidents included in it, . . . cannot be a second time
tried for one of those incidents without being twice put in
jeopardy for the same offence."
In re Nielsen, supra at
131 U. S. 188.
See also Waller v. Florida, 397 U.
S. 387 (1970);
Grafton v. United States,
206 U. S. 333,
206 U. S. 352
(1907).
The motion for leave to proceed
in forma pauperis is
granted, the petition for writ of certiorari is granted, and the
judgment of the Court of Criminal Appeals is
Reversed.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL Joins,
concurring.
I join the Court's opinion, but, in any event, would reverse on
a ground not addressed by the Court, namely, that the State did not
prosecute the two informations in one proceeding. I adhere to the
view that the Double Jeopardy Clause of the Fifth Amendment,
applied to the States through the Fourteenth Amendment, requires
the prosecution in one proceeding, except in extremely limited
circumstances not present here, of "all the charges against a
defendant that grow out of a single criminal act, occurrence,
episode, or transaction."
Ashe v. Swenson, 397 U.
S. 436,
397 U. S.
453-454 (1970) (BRENNAN, J., concurring).
See
Thompson v. Oklahoma, 429 U.S. 1053 (1977) (BRENNAN, J.,
dissenting from denial of certiorari), and cases collected
therein.
* The State conceded in its response to the petition for
certiorari that, "in the Murder case, it was necessary for all the
ingredients of the underlying felony of Robbery with Firearms to be
proved. . . ." Brief in Opposition 4.
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