676

REHNQUIST, J., dissenting

when jeopardy attaches in such a situation. Assuming that the factual uncertainties in the procedural history of the case can be clarified, and that the issue of guilt or innocence was submitted to the trial judge, I do not believe this case is controlled by Jenkins. The double jeopardy issues which it raises are not as straightforward as suggested in the Court's summary disposition. If the Court feels this case should be decided on the merits, I would therefore grant certiorari and have it briefed and argued.

Per Curiam

433 U.S.

HARRIS v. OKLAHOMA

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS OF OKLAHOMA

No. 76-5663. Decided June 29, 1977

Where petitioner had been convicted of felony-murder based on his companion's killing of a victim during the course of an armed robbery, the Double Jeopardy Clause of the Fifth Amendment barred a separate prosecution of petitioner for the lesser crime of robbery with firearms, since conviction of the greater crime of murder could not be had without conviction of the lesser crime.

Certiorari granted; 555 P. 2d 76, reversed.

PER CURIAM.

A clerk in a Tulsa, Okla., grocery store was shot and killed by a companion of petitioner in the course of a robbery of the store by the two men. Petitioner was convicted of felonymurder in Oklahoma State court. The opinion of the Oklahoma Court of Criminal Appeals in this case states that “[i]n a felony murder case, the proof of the underlying felony [here robbery with firearms] is needed to prove the intent necessary for a felony murder conviction." 555 P. 2d 76, 80-81 (1976). Petitioner nevertheless was thereafter brought to trial and convicted on a separate information charging the robbery with firearms, after denial of his motion to dismiss on the ground that this prosecution violated the Double Jeopardy Clause of the Fifth Amendment because he had been already convicted of the offense in the felony-murder trial. The Oklahoma Court of Criminal Appeals affirmed.

When, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one.* In re

*The State conceded in its response to the petition for certiorari that "in the Murder case, it was necessary for all the ingredients of the under

682

BRENNAN, J., concurring

Nielsen, 131 U. S. 176 (1889); cf. Brown v. Ohio, 432 U. S. 161 (1977). "[A] person [who] has been tried and convicted for a crime which has various incidents included in it, . . . cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offence." In re Nielsen, supra, at 188. See also Waller v. Florida, 397 U. S. 387 (1970); Grafton v. United States, 206 U. S. 333, 352 (1907).

The motion for leave to proceed in forma pauperis is granted, the petition for writ of certiorari is granted, and the judgment of the Court of Criminal Appeals is

Reversed.

MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, concurring.

I join the Court's opinion but in any event would reverse on a ground not addressed by the Court, namely, that the State did not prosecute the two informations in one proceeding. I adhere to the view that the Double Jeopardy Clause of the Fifth Amendment, applied to the States through the Fourteenth Amendment, requires the prosecution in one proceeding, except in extremely limited circumstances not present here, of "all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction." Ashe v. Swenson, 397 U. S. 436, 453-454 (1970) (BRENNAN, J., concurring). See Thompson v. Oklahoma, 429 U. S. 1053 (1977) (BRENNAN, J., dissenting from denial of certiorari), and cases collected therein.

lying felony of Robbery with Firearms to be proved. ... Opposition 4.

REPORTER'S NOTE

The next page is purposely numbered 901. The numbers between 683 and 901 were intentionally omitted, in order to make it possible to publish the orders with permanent page numbers, thus making the official citations available upon publication of the preliminary prints of the United States Reports.