Johnson v. Hampton

572 P.2d 1301 (1978)

Kurk Kendall JOHNSON, Petitioner,
v.
The Honorable Don H. HAMPTON, District Judge, Tenth Judicial District, State of Oklahoma, Respondent.

No. O-76-150.

Court of Criminal Appeals of Oklahoma.

January 4, 1978.

ORDER WITHDRAWING OPINION AND GRANTING WRIT OF PROHIBITION

WHEREAS, on December 19, 1977 there was filed in this Court a true copy of an order, certified by the Deputy Clerk of the Supreme Court of the United States on the 14th of December, 1977, directing that the order entered by this Court in the above styled and numbered cause on the 16th day of May, 1977 be vacated, and remanding said cause for further consideration in the light of Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187, and Harris v. Oklahoma, ___ U.S. ___, 97 S. Ct. 2912, 53 L. Ed. 2d 1054.

NOW, THEREFORE, the opinion heretofore entered on the 16th day of May, 1977 in the above styled and numbered cause is vacated and set aside, and further prosecution of Kurk Kendall Johnson in the District Court, Osage County, Case No. CRF-75-294, for the offense of Murder in the First Degree in violation of Laws 1973, c. 167, § 1 is prohibited, and the court is directed to strike from the information in that case the following language:

"... said acts and killing being perpetrated by the said Kurk Kendall Johnson pursuant to, and as a result of, the commission of, or attempt to commit, the crime if Kidnapping for the purpose of Extortion..."

This order is made without prejudice to the trial of the said Kurk Kendall Johnson on any charge of homicide which the facts and justice may warrant, not inconsistent with the views expressed by the Supreme Court of the United States in Brown v. Ohio and Harris v. Oklahoma, supra.

WITNESS OUR HANDS and the Seal of this Court this 4th day of January, 1978.

HEZ. J. BUSSEY, P.J. TOM R. CORNISH, J. TOM BRETT, J.