LUMPKIN, JUDGE:  SPECIAL CONCUR

¶1  “Legislatures, not courts, prescribe the scope of punishment.”  Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983) (emphasis added).

¶2   The fundamental rule of statutory interpretation is to ascertain the intention of the Legislature to assure that their intention is followed.  Ex parte Higgs, 263 P.2d 752, 756 (Okl.Cr.1953).  “Under such conditions as are herewith presented all courts recognize the principle of resort to rules of construction in arriving at legislative intent.” Id.  When reviewing a criminal statute, the interpretation should not go further than the plain language, nor should it be construed so narrowly as to defeat the intent.  U.S. v. Braverman, 373 U.S. 405, 408, 83 S.Ct. 1370, 1372, 10 L.Ed.2d 444 (1963).

¶3  As we noted in Kinchion v. State, 2003 OK CR 28, ¶5, 81 P.3d 681, 683 (Okl.Cr.2003), prior to 1996, 21 O.S. 2001, § 701.7(B) read, in pertinent part:

A person also commits the crime of murder in the first degree when he takes the life of a human being, regardless of malice, in the commission of…robbery with a dangerous weapon. (emphasis added)

During the 1996 session, the Legislature responded to a prior decision of this court¹ and amended § 701.7(B) to read, in pertinent part:

A person also commits the crime of murder in the first degree, regardless of malice, when that person or any other person takes the life of a human being during, or if the death of a human being results from, the commission or attempted commission of…robbery with a dangerous weapon.  (emphasis added)

Id. at ¶5, 81 P.3d @ 684.

¶4  When reviewing the plain language of this statute as amended, the intent is absolutely clear on its face: in 1996 the Legislature wanted to bolster § 701.7(B) to include any murder that occurs as a result of an enumerated felony.  In other words, it appears the Legislature recognized the grave danger these type of acts created for all persons involved and wanted to hold those who created the danger accountable. 

¶5  Despite the shrinking of the felony murder rule in many jurisdictions,² and the expansion of Lord Coke’s original design of felony murder,³ the Legislature in Oklahoma has found it necessary to enlarge the reach of  § 701.7(B).  Because the Legislature holds the providence to dictate the law of Oklahoma, this Court must honor that Constitutional mandate and uphold the concept of separation of powers.

¶6  It is a natural part of our humanity to desire to find some equitable vehicle to assist this defendant who attempted a late withdrawal from the event that caused the death of his co-defendant.  However, this is a court of law, not a court of equity.⁴  In seeking legal theories upon which to analyze the facts of this case we find the Legislature has forestalled their application. 

¶7  The strongest alternative theory available, that the Appellant attempted to abandon⁵ either a conspiracy to commit or the commission of the robbery, fails on the fact he had already committed the robbery with his co-defendant.  He was thus well within the legislative mandate of § 701.7(B), which makes him liable  “or if the death of a human being results from…robbery with a dangerous weapon”.  Based on the language of the statute and a correct reading of Kinchion, this Court has no alternative but to deny relief to the Appellant.  Even if an application of the legal rules of the law of abandonment were to be applied in this situation, the attempt to abandon came too late.  The inherently dangerous action had already been put into motion.  It is the very results of that conduct the amended statute sought to punish.

¶8  Appellant was properly charged and convicted of first-degree felony-murder in the manner that the Legislature intended.  Courts do not adjudicate based on feelings.  Judges may not simply wake up in the morning and decide that they plan to let a criminal or two off because they feel like it.  We apply legal principles in deciding cases, and there has been no change in these principles.  Chief Justice Mara D. Corrigan recently wrote of the challenge of appellate courts committing to a “textualist approach to judicial interpretation”.⁶  As she relates “ ‘textualism’ is a reviled word in many circles.”  Chief Justice Corrigan goes further to identify the need for judges to guard against their humanity as is exemplified by the actions of “philosopher-kings” flowing from Plato’s Republic, his treatise on the ideal state.  As she notes “the people were to take their orders from enlightened philosopher-kings, who would give their followers constant and detailed direction”.⁷  When applying “textualism” appellate courts are bound by the plain, objective meaning of the text of the statute.  That approach provides consistency, ensures discipline for appellate judges, and upholds the Rule of Law.  Chief Justice Corrigan expresses it well,

This is my concern with the critics of textualism:  an activist approach rests on an anti-democratic premise that judges just know better- - that we are somehow smarter and wiser than the people we govern and serve - - that we on the bench are the new philosopher-kings.  The constant temptation in judging is to be expedient, to reach out and fix what appears to be wrong.⁸

   ¶9  We must respect the authority and prerogatives of the Oklahoma Legislature, regardless of whether we agree with their actions.  The amendment to Section 701.7(B) is constitutional.  Its scope is a question of public policy not within the jurisdiction of this Court.  Our role is to give effect to the plain meaning of the constitutional language enacted by the Legislature, and provide certainty in the application of that law.  As Chief Justice Corrigan makes succinctly clear, “the meaning of the law is simply more certain when judges faithfully apply a disciplined interpretative approach.  Non-textual modes of interpretation leave lower courts, attorneys and the long-suffering public in a morass of uncertainty.”⁹  We should be dedicated to making the law clear and certain and applying it in a consistent manner.  This opinion seeks to do just that, apply the plain, clear language of the statute as enacted by the representatives of the people, the Oklahoma Legislature.  If a different application is desired, the Legislature has the authority to effect that change through the legislative process.

FOOTNOTES

¹ State v. Jones, 1993 OK CR 36, 859 P.2d 514 (Okl.Cr.1993).

² See Charles E. Torcia, Wharton’s Criminal Law, § 147 (15^th ed. 1993).  See also Wayne R. LaFave, Substantive Criminal Law, § 14.4 (2d ed. 2003).  E.g. Sophophone v. Kansas, 19 P.3d 70 (Ks. 2001).

³ Lord Coke’s 1644 statement of felony murder is commonly accepted as the beginnings of felony murder, “that a death caused by any unlawful act is murder.”  See Wayne R. LaFave, supra.

⁴ See Hain v. State, 1993 OK CR 22, 852 P.2d 744, 753-754 (Lumpkin, P.J., Concurring in Part/Dissenting in Part).

⁵ See Perkins on Criminal Law, 2d. Ed.(1969), Pg. 588-590.

⁶ See Maura D. Corrigan, Textualism in Action: Judicial Restraint on the Michigan Supreme Court, Vol. 8, No. 2 Texas Review of Law & Politics, 261 (2004).

⁷ Id.

⁸ Id. at 262.

⁹ Id. at 263-264.

JOHNSON, J.: CONCUR IN RESULTS

¶1  This case is not totally unusual.  The facts are in dispute and the jury had to decide who to believe.  The facts show Appellant did not have a firearm at the time of the robbery, and Appellant, along with others, ran from the scene of the robbery.  There is a conflicting evidence relating to when Appellant fell to the ground and surrendered.

¶2  Obviously, parties involved in an armed holdup take a great deal of responsibility, even one for the other.  One should know that guns could be fired and someone could be hurt or killed.  I would not affirm a murder conviction for one who did not have a weapon and surrendered at the first request to do so, if another party was killed by a law officer because that party did not surrender.  If a party clearly breaks off his involvement in the armed robbery, he should not at that point be subjected to charges for what happens to the other parties thereafter.

¶3  I therefore concur in result because there is evidence that Appellant did not surrender early in the chase.  He likely surrendered because of the K-9 dogs, rather than halting when ordered to do so.