Nowlin v. State

CHAPEL, J.,

concurring in results:

T1 On a single day, Nowlin stole power tools in Canadian County. He took the tools into Oklahoma County and pawned them. Nowlin was convicted in Oklahoma County of concealing stolen property because he pawned the tools. After that conviction, he was prosecuted for grand larceny in Canadian County. I reluctantly agree with the majority that, technically, the second prosecution does not violate double jeopardy or the statutory prohibition against double punishment. I reach this conclusion for two reasons. First, grand larceny, the later-charged crime, contains elements which differ from those required to prove a person concealed stolen property. Second, I believe Nowlin did not engage in a single course of conduct when he stole the tools then pawned them in a different city.

12 However, I would reach a different conclusion if Nowlin had first been convicted of grand larceny. Since the elements of concealing stolen property are included in the proof necessary for grand larceny, I believe any subsequent prosecution for concealing stolen property would violate double jeopardy.¹ There is no question that both Nowlin's prosecutions originated with the same act of theft. I am concerned that we are encouraging prosecutors to split charges and file subsequent prosecutions. This practice, which requires separate trials, strains the entire criminal justice system.

1 . The majority cites three cases suggesting this Court has ruled otherwise. On closer inspection, this is not the case. Bussett v. State, 1982 OK CR 79, 646 P.2d 1293, held that the elements of concealing stolen property differed from the elements of larceny of a domestic animal. This is true but hardly determinative here. Coughran v. State, 1977 OK CR 198, 565 P.2d 688, and Walls v. State, 1971 OK CR 331, 491 P.2d 320, merely noted in dicta that a person could be charged with concealing stolen property even though he might be guilty of burglary. There was no double jeopardy issue presented.