Later courts went against this
Overruled in part by Bowen v. State, 1978 Okla. Crim. App. LEXIS 268 (1978)
In light of the test set forth in Brown, supra, it is readily apparent that the language in Branch and Draper is no longer valid, therefore we expressly overrule the aforementioned language contained in Branch and Draper.
The opinion
BRETT, Judge
(dissents):
I must respectfully dissent. As I understand the facts, the police pursuant to an arrest warrant arrested petitioner in the front yard of his residence. An initial search of his person revealed one packet of marihuana (hashish). Then in the police car six other packets of marihuana (hashish) were found on his person. These seven packets of marihuana form the basis for the felony prosecution of unlawful posses *595 sion of marihuana with intent to distribute (CRF 72-568). After petitioner was placed in jail the officers returned to petitioner’s residence and made a forceful entry pursuant to a search warrant. This search disclosed more marihuana which was the basis of the misdemeanor prosecution for possession of marihuana (CRM 72-384), and disclosed amphetamine which was the basis of the misdemeanor prosecution for unlawful possession of amphetamine (CRM 72-383).
The thrust of the majority opinion is that the felony prosecution is not barred by petitioner’s misdemeanor conviction for possession of marihuana, since the offenses are different as the felony charge requires additional evidence indicating the petitioner had the intent to distribute. Thus it is immaterial, reasons the majority, whether the “same evidence” or “same transaction” test is applied citing the Oregon Supreme Court’s decision in State v. McDonald, 231 Or. 48 , 365 P.2d 494 (1961). It is interesting to note that the Oregon Supreme Court in a more recent decision has held that “the ‘same evidence’ test does not provide adequate protection, under modern conditions, from the evils contemplated by the double jeopardy guarantee.” Thus “violations may be the ‘same offense’ for purposes of testing a second prosecution, even though each contains different elements and requires proof of different facts.” State v. Brown, 497 P.2d 1191, 1196 (Or.1972).
Although a charge of transportation of marihuana requires proof of evidence beyond mere possession of the marihuana, it has been held that a defendant’s “possession and transportation of marihuana was an indivisible course of conduct with a single objective.” Thus the defendant could not be punished for both offenses arising out of the same incident. People v. Solo, 8 Cal.App.3d 201, 208 , 86 Cal.Rptr. 829, 834 (1970).
Without belaboring the point, I am of the opinion that the marihuana found in the possession of petitioner on his person when arrested at his residence, and inside his residence on the same day by the same officers, should support only one conviction. The fact that the marihuana was discovered in different locations within a matter of hours does not allow segmentation of the unlawful possession for the purpose of more than one prosecution. Surely if unlawful contraband of the same kind was found in two different rooms of the same house on the same day it would not support two prosecutions. There is no difference, in my view, where the contraband is found partly on defendant’s person while in the yard of his residence and partly inside his residence. There was essentially only one unlawful possession.
It has been held that where a person is in unlawful possession of stolen property, stolen from two different owners at different times, there can be only one prosecution for receiving the stolen property. People v. Lyons, 50 Cal.2d. 245, 324 P.2d 556 (1958); 28 A.L.R.2d 1182 , 1184. If part of the stolen property was found inside the defendant’s house and part of it in the back yard, there still would be but one offense.
Nor do I think that finding the marihuana inside petitioner’s house a short time after the discovery of marihuana on his person allows segmentation of his possession to allow two prosecutions. The discoveries were substantially contemporaneous in time. ' It has been held that where a person made a delivery of heroin and then a second delivery of heroin on the same day to the same purchaser, the “course of criminal conduct during the two hours from 9 until 11 P.M. was a single transaction.” Thus there could be only one conviction as the “two acts of delivery were substantially contemporaneous in time.” In re Johnson, 65 Cal.2d 393 , 54 Cal.Rptr. 873, 874 , 420 P.2d 393, 394 (Cal.1966).
Title 21 O.S.1971, § 11, provides in relevant part:
“[A]n act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions . *596 but in no case can he be punished under more than one; and an acquittal or conviction and sentence under either one, bars the prosecution for the same act or omission under any other.”
“It is significant that this statute speaks of an ‘act or omission’ while the double jeopardy prohibition speaks of a conviction or acquittal of an ‘offense’ as being a bar to another prosecution for the same ‘offense.’ If an ‘act’ violates two different laws, it may be two ‘offenses’ under double jeopardy interpretation, but Section 11 prohibits a single act being punished more than once under different statutes.” Shackelford v. State, Okl.Cr., 481 P.2d 163, 165 (1971). Even if double jeopardy is not a bar to this prosecution, as the majority opinion recites, I believe the provisions of 21 O.S.1971, § 11 do constitute such bar to trial.
In the instant case the possession of marihuana, whether for personal use or possessed with intent to distribute, was all of the same substance and was admittedly possessed by the same person on the same premises. Therefore the question presented by this matter is whether defendant can be punished for possession of marihuana and be additionally punished for the intent to distribute a part of the same substance.
The State has sole discretion in deciding what prosecutions to file. If the State believed the amount of marihuana found on petitioner’s person and in his residence indicated the intent to distribute, they should have elected to prosecute for the felony offense of possession with intent to distribute, and not filed the misdemeanor offense of mere possession. Petitioner’s criminal possession of marihuana should be punished, but only once, and the State in its discretion may elect the most appropriate charge. Since the State filed the misdemeanor possession charge and allowed petitioner to be convicted for that offense, that conviction is, in my view, a bar to further prosecution for the same possession albeit under another name. Therefore, I would grant the writ, as prayed for.