Ryan v. State , 473 P.2d 322 ( 1970 )

BUSSEY, Judge.

James Patrick Ryan, hereinafter referred to as defendant, was convicted in the District Court of Oklahoma County for the offense of Illegal Possession of Narcotic Drugs. From the judgment and sentence fixing his punishment at two years imprisonment in the state penitentiary, in accordance with the verdict of the jury, he appeals.

Briefly stated, the facts pertinent to this appeal are that on the 8th day of July, 1967, the defendant and another, committed an armed robbery at Davis Drug, 6620 N. W. 23rd in Oklahoma City, taking therefrom $93.00 in currency and a quantity of narcotic drugs. The defendant was apprehended four hours after the robbery by officers of the Oklahoma City Police Department hiding in an apartment house at 6802½ N.W. 13th. In his possession at the time of his arrest was a quantity of Dilau-did which was identified as having been taken from the robbery of Davis Drug. The defendant was charged, tried and convicted for the crime of Armed Robbery and sentenced to serve 25 years imprisonment in the state penitentiary. Thereafter, he was brought to trial on the instant charge and prior to trial, entered a plea in bar alleging that his conviction for Armed Robbery precluded his trial for the illegal possession of narcotics taken in this robbery. On the trial of the instant case he entered a plea of not guilty and the further plea of former jeopardy.

On appeal he urges that having been tried and convicted for the offense of Armed Robbery, a subsequent trial for illegal possession of narcotics taken in said robbery constituted a violation of his constitutional rights prohibiting him from twice being placed in jeopardy for the same offense or any offense necessarily included in the first offense for which he was convicted. While the respective parties have presented excellent briefs, we deem it unnecessary to deal with this question at great length; suffice it to say that the offense of Armed Robbery had been completed when the money and drugs were taken and asported from the scene of the robbery some four hours prior to the defendant’s arrest. The possession of drugs seized on the defendant was a separate and distinct offense and whether the defendant came into possession of them by purchase without prescription or by unlawful means, could not affect the legality of the possession subsequent to the robbery.

Defendant further contends that the trial court erred in refusing to give defendant’s requested instruction as to what constitutes double jeopardy and the test applicable for determination thereof. In the instant case the court had determined this issue and there was no question of fact left for determination of the jury. Under such circumstances we follow the rule enunciated in State v. Brooks, 38 Okl.Cr. 302, 260 P. 785:

“Where a plea of former jeopardy is made which involves no question of fact, but presents a question of law only, it is not necessary to submit such plea to the jury, but the court may act upon it as a question of law.”

For the reasons above set forth, we are of the opinion that the judgment and sentence appealed from should be, and the same is hereby, affirmed.