Dodson v. State

BRETT, Judge,

specially concurring:

I concur these convictions that were consolidated for trial should be affirmed, but I would modify the sentence to life imprisonment for the offense of Shooting With Intent to Kill, After Former Conviction of a Felony; and would affirm the fifty (50) year sentence for the offense of Armed Robbery, After Former Conviction of a Felony.

I am authorized by my colleague, Presiding Judge Bussey, to comment on our views regarding the joinder of offenses and of defendants in the information, or of the joinder of informations for trial.

After reviewing the provisions of H.B. 988, Ch. 311 of the 1968 Session Laws for the 31st Legislature, Second Session, now cited as 22 O.S.1971, §§ 436-440, there is no doubt in my mind but that it was the intention of the legislature to authorize the joinder of two or more defendants in the same indictment or information; to authorize the joinder of counts in the same indictment or information; and to authorize the joinder for trial of two or more indictments or informations, or both. This authority is subject to limitations appearing within H.B. 988 which Act because of such limitation must be reviewed in its entirety to give meaning to each Section of the Act consistent with the whole Act and the Title thereto. For this reason the entire Act as it appears in the 1968 Sessions Laws, pages 494 and 495, is set out as follows:

“CRIMINAL PROCEDURE — INDICTMENTS AND INFORMATIONS — JOIN-DERS

“CHAPTER 311 “H.B. NO. 988

“AN ACT RELATING TO CRIMINAL PROCEDURE; PROVIDING FOR JOINDER OF OFFENSES AND OF DEFENDANTS IN INDICTMENTS AND INFORMATIONS; PROVIDING FOR THE TRIAL TOGETHER OF INDICTMENTS AND/OR INFORMATIONS; PROVIDING FOR RELIEF FROM PREJUDICIAL JOINDER; AND REPEALING CONFLICTING LAWS.

“Be it enacted by the People of the State of Oklahoma:

“SECTION 1. Charging of two or more defendants in same indictment or information — Counts

“Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately, provided that all of the defendants charged together in the same indictment or information are alleged to have participated in all of the same acts or transactions charged.

“SECTION 2. Singular to include the plural

*924 “All laws in this chapter wherein the singular of words is used are hereby amended to include the plural of such words to give effect to the purpose of this Act.

“SECTION 3. Trial of two or more indictments or informations

“The court may order two or more indictments or informations or both to be tried together if the offenses and the defendants, if there is more than one, could have been joined in a single indictment or information. The procedure shall be the same as if the prosecution was under such single indictment or information. “SECTION 4. Relief from prejudicial joinder

“If it appears that a defendant or the State is prejudiced by joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court shall order an election or separate trial of counts, grant a severance of defendants, or provide whatever other relief justice requires.

“SECTION 5. Repeal of conflicting laws “All laws or parts of laws in conflict herewith are hereby repealed.

“Approved May 7, 1968.”

One must first view the title of an act to determine if the subject covered is clearly expressed, Art. 5, Oklahoma Constitution 1971, § 57, and “ . . .a consideration of the title to the Act may be enlightening, because the body of an Act cannot be broader than the title.” Brown v. State, Okl.Cr., 266 P.2d 988, 990 (1954); see also, Oklahoma City v. Prieto, Okl., 482 P.2d 919 (1971); and further, “ ‘the title [is] a very valuable aid in interpreting the body of the Act and determining the intent of the legislature.’ ” Brown v. State, supra, 990 . The title of H.B. 988 provides for the joinder of offenses (counts) in indictments or informations; the joinder of defendants in indictments or informations; the trial together of indictments, of informations, or of indictments and informations; the relief from prejudicial joinder; and, the repeal of conflicting laws.

With the title provisions in mind I now turn to a discussion of each section of H.B. 988.

Section one (now 22 O.S.1971, § 436) clearly permits the charging of two or more defendants in the same indictment or information, which is consistent with the joinder of defendants provided in the title; however, it limits such joinder to those defendants who are alleged to have committed the same offense or offenses.

Section one, also clearly permits the charging of two or more defendants with one or more counts in the same indictment or information, which is consistent with the joinder of offenses (counts) provided in the title; likewise, it here permits the joinder of offenses only if all the defendants, who are charged in the same indictment or information, are alleged to have participated in all the offenses charged. 1

Section one, though less clearly, further permits the charging of one defendant with one or more offenses (counts) in the same indictment or information, which is likewise consistent with the joinder of offenses (counts) provided in the title. In construing Section one to permit one defendant to be charged by counts in the same indictment or information one must look closely to the second sentence which reads in pertinent part: “Such defendants may be charged in one or more counts together or separately (Emphasis added) In State v. Freeman, Okl., 440 P.2d 744, 756 (1968), the Court, quoting from Oklahoma Natural Gas Co. v. State, 187 Okl. 164 , 101 P.2d 793 (1940), stated as follows:

“ ‘It is a familiar rule of constitutional and statutory construction that sections are to be construed so as to give effect to every part thereof, that each provision of a section should be construed so as to harmonize with all the others, yet with a view to giving effect to each and every *925 provision insofar as it shall be consistent with a construction of the section as a whole; the presumption being that every provision has been intended for some useful purpose. * * * ’ ”

In the second sentence of Section one, although the phrase “together or separately” appears immediately after the word “counts,” “together or separately” would have no effect and have no useful purpose if construed to refer to and modify “counts”; this is so because the word “counts” is already preceded by “one or more” and it would be redundant to say “one or more” “together or separately.” However, if “together or separately” is construed to refer to and modify the word “defendants” so that it reads “ . . . defendants may be charged” “together or separately” “in one or more counts” all the provisions of the second sentence would be effective and serve a useful purpose. Furthermore, such a construction would be giving effect to Section one of H.B. 988 in a manner consistent with Sections three and four of the Act (now 22 O.S.1971, §§ 438 and 439); in fact, it gives meaning to the provision in Section three which reads “ . . .if the offenses and the defendants, if there is more than one, could have been joined in a single indictment or information,” (emphasis added) which would have no useful purpose or meaning within the context of the Act as a whole, unless offenses could be joined in the same indictment or information; and it gives meaning to Section four which enables relief from prejudicial joinder of offenses (counts) in an indictment or information, which provision clearly would serve no useful purpose unless joinder of offenses in the same indictment or information were possible in the first place.

Section two (now 22 O.S.1971, § 437) is self-explanatory.

Section three (now 22 O.S.1971, § 438) permits the court to join two or more indictments or informations, or indictments and informations for trial, which is consistent with the joinder of indictments and informations, or both for trial as provided in the title; however, it limits such joinder for trial to offenses and defendants, if there is more than one, that could have been joined in the same indictment or information within the limitations set out in Section one of the Act.

Section four (now 22 O.S.1971, § 439) permits relief on motion of either the defendant or the State if the joinder of offenses in the same indictment or information, the joinder of defendants in the same indictment or information, or the joinder of indictments or informations, or indictments and informations for trial is prejudicial which is consistent with the relief from prejudicial joinder as provided in the title.

Section five (now 22 O.S.1971, § 440) states: “All laws or parts of laws in conflict herewith are hereby repealed.” Without further discussion it is noted that 22 O.S.1971, § 404, which was in existence when H.B. 988 was enacted is in conflict with H.B. 988 insofar as it states that an “ . . . indictment or information must charge but one offense,” and I would hold that part of 22 O.S.1971, § 404, was repealed by Section five of H.B. 988.

If the above procedure were followed it would operate to reduce the number of trials 2 and the attendant expenses to the *926 State and the defendant while at the same time give either relief from prejudicial join-der by review of the trial court.

. The combined effect of these limitations is to prohibit the charging of more than one defendant in the same indictment or information unless they are all alleged to have committed all the offenses or counts charged in the same indictment or information.

. “ ‘ . an indictment in several counts, . . . is a collection of several bills against the same defendant for offenses which on their face appear distinct, under one caption, and found and indorsed collectively as true by the grand jury. The object is what it appears to be; namely, in fact to charge the defendant with the distinct offenses, under the idea that the court may, as otten as it will, allow them to be tried together, thus averting from both parties the burden of two or more trials; [in Oklahoma, authorized by 22 O.S.1971, §§ 436-440] or, in another class of cases, to vary what is meant to be the one accusation, so as, at the trial, to avoid an acquittal by any unforeseen lack of harmony between allegation and proofs, or a legal doubt as to what form of charge the court will approve.’ [In Oklahoma, authorized by 22 O.S.1971, § 404] 1 Bish.Crim.Proc. 421, 422. And: ‘On the face of the indictment, therefore, every separate count should charge the defendant as if he had committed a distinct offense, because it is on the principle of joinder of offenses that the joinder of counts is admitted.’ Id. 426.” (Emphasis added) Boren v. State, 23 Tex.App. 28 , 4 S.W. 463, 464 (1887).

Reversed on other grounds.