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Isom v. State6/10/1982
The opinion of the court was delivered by: BUSSEY, Judge.
The appellant, Johnny M. Isom, was convicted of two counts of Murder in the Second Degree, pursuant to laws 1976, ch. 1, § 2 [1-2], now 21 O.S. 1981 § 701.8 [21-701.8], in the District Court of Kingfisher County. He was sentenced to ten (10) years' imprisonment for each count, said sentences to run consecutively, and has perfected a timely appeal to this Court.
The charges which resulted in the appellant's conviction stem from a one-vehicle accident in which the appellant was the sole survivor. The appellant's two companions, Kimberly McLaughlin and Cindy Burgess were killed in the accident. The conviction was based on 21 O.S. 1981 § 701.8 [21-701.8](2), wherein one may be found guilty of said charge when the homicide is perpetrated by a person engaged in the commission of any felony other than those listed in the first degree murder statute, 21 O.S. 1981 § 701.7 [21-701.7]. The State proved that the appellant was engaged in the commission of a felony at the time of the accident by demonstrating that he was driving the pickup while intoxicated, after a former conviction of driving while intoxicated.
The appellant argues in his third assignment of error that the State improperly alleged his previous conviction for DUI in the single page information, thereby placing his reputation in issue. The appellant cites Lovell v. State, 455 P.2d 735 (Okl.Cr. 1969) and Harris v. State, 369 P.2d 187 (Okl.Cr. 1962) in support of his contention that charges arising under 47 O.S. 1981 § 11-902 [47-11-902] must be filed in two page informations; with the first page alleging the primary offense, and the second page alleging the previous conviction(s).
We distinguish the case before us from Lovell and Harris. Both of those cases dealt with allegations of former convictions contained in the first page of the information which were relevant for the sole purpose of enhancement of the penalty. The former convictions had no relevancy in the proof of the principal crime(s) with which the accused were charged. Thus, in Lovell and Harris it was held that the former convictions of an accused must be alleged in the second page of an information to prohibit the defendant's character and reputation from being improperly placed in issue during the case in chief.
In the present case, however, the felony alleged (driving while under the influence of intoxicant, second offense) was an essential element of the murder in the second degree charge. The State could not have proven its case against the appellant as a matter of law had there been a bifurcated trial and no mention made of the former DUI conviction in the first stage, because the element that the appellant was engaged in the commission of a felony would not have been proven. The determining factor in the decision to charge a defendant in a one page or two page information is whether the first page of a proposed two page information would contain facts sufficient to allow the trier of fact to find that a statute has been violated. If not, as in the present case, a single page information must be used. See, Williams v. State, 565 P.2d 46 (Okl.Cr. 1977); Marr v. State, 513 P.2d 324 (Okl.Cr. 1973).
Furthermore, this case falls directly under the statutory provisions of 22 O.S. 1981 § 860 [22-860]:
In all cases in which the defendant is prosecuted for a second or subsequent offense, except in those cases in which former conviction is an element of the offense, the procedure shall be as follows: [provisions for bifurcated trials] (Emphasis added).
The appellant's prior DUI
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