Hall v. State ( 1971 )

BRETT, Judge

(specially concurring in results).

I concur in the results of this decision; however, I do not agree that defense counsel was “laying behind a log” for the purpose of creating error. The trial court properly resolved that the two charges fell under the “one transaction rule.” In that instance under the provisions of 22 O.S. Supp.1968, § 438, the two informations¹ could be tried at the same time; however, as provided in Brumbelow et al. v. State, Okl.Cr., 488 P.2d 1298, when two informa-tions are tried at the same time under provisions of Section 438, they must be submitted to the jury as separate counts under the provisions of 22 O.S.1961, § 404; also, in that instance the jury would return a verdict on one, or the other, count charged, or a not guilty verdict. Under the facts here presented, it is stated in the Court’s opinion, “We further observe that the identical evidence would be presented in the trial of either of the charges-involved.” Therefore, had the two charges not been tried at the same time, I believe the trial on the second information may have been precluded by the provisions of 21 O.S.Supp. 1970, § 11. See: Householder v. Ramey, Okl.Cr., 485 P.2d 247 (1971).

1 . Under the facts of this case, the proper administration of justice does not require the in-formations to be filed.