Miller v. Oregon
William Isaac Miller v. State of Oregon
Opinion of the Court
Sup. Ct. Ore. Cer-tiorari denied.
Dissent
Mr. Justice Brennan, joined by Mr. Justice Douglas and Mr. Justice Marshall,
dissenting.
Petitioner had a pistol on his person when he was arrested in Portland, Oregon, on January 28, 1970. Two prosecutions were brought against him based on this single act of possession. The first was a complaint filed January 29, 1970, for violation of § 14.32.040 of the Code of the City of Portland, which makes it a crime to carry a concealed weapon. The second was an indictment handed down April 20,- 1970, for violation of Oregon Revised Statutes § 166.270, whch makes it a felony for “any person who has been convicted of a felony against the person or property of another” to carry a concealed weapon.
On April 29, 1970, the petitioner was convicted of the ordinance violation. He thereupon entered a plea of double jeopardy to the felony indictment. The plea was sustained in the trial court and the indictment dismissed. The Court of Appeals of Oregon reversed, 5 Ore. App. 501 , 484 P. 2d 1132 . The Oregon Supreme Court denied review.
I would grant the petition for certiorari and reverse. In my view the Double Jeopardy Clause applicable to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U. S. 784 (1969), requires the prosecution, except in most limited circumstances not present here, “to join at one trial 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) (concurring opinion). Under this “same transaction” test of “same offense” the trial court properly sustained petitioner’s double jeopardy plea.
Combined text as published — syllabus, headnotes and all opinions in one document
405 U.S. 1047 92 S.Ct. 1321 31 L.Ed.2d 590
William Isaac MILLER v. State of OREGON.
No. 71-5560.
Supreme Court of the United States
April 3, 1972
On petition for writ of certiorari to the Supreme Court of Oregon.
The petition for a writ of certiorari is denied.
Mr. Justice BRENNAN, joined by Mr. Justice DOUGLAS and Mr. Justice MARSHALL, dissenting.
1
Petitioner had a pistol on his person when he was arrested in Portland, Oregon, on January 28, 1970. Two prosecutions were brought against him based on this single act of possession. The first was a complaint filed January 29, 1970, for violation of § 14.32.040 of the Code of the City of Portland which makes it a crime to carry a concealed weapon. The second was an indictment handed up April 20, 1970, for violation of Oregon Revised Statutes 166.270 which makes it a felony for 'any person who has been convicted of a felony against the person or property of another' to carry a concealed weapon.
2
On April 29, 1970, the petitioner was convicted of the ordinance violation. He thereupon entered a plea of double jeopardy to the felony indictment. The plea was sustained in the trial court and the indictment dismissed. The Court of Appeals of Oregon reversed, 92 Oregon Advance Sheets 963 (1971). The Oregon Supreme Court denied review.
3
I would grant the petition for certiorari and reverse. In my view the Double Jeopardy Clause applicable to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969), requires the prosecution except in most limited circumstances not present here, 'to join at one trial 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 , 90 S.Ct. 1189, 1199 , 25 L.Ed.2d 469 (1970) (concurring opinion). Under this 'same transaction' test of 'same offense' the trial court properly sustained petitioner's double jeopardy plea.
How later courts describe this case
Explanatory parentheticals written by citing courts — 2 in all; the most informative distinct ones are shown.
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(holding double jeopardy clause not violated when defendant was prosecuted for use of weapon during perpetration of a felony after being tried for violation of a City ordinance (possession of a concealed weapon), both crimes arising out of same transaction)
Cited by 16 cases
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