Duvall v. State

Decision Date16 December 1924
Docket Number18468
Citation146 N.E. 90,111 Ohio St. 657
PartiesDuvall v. The State Of Ohio.
CourtOhio Supreme Court

Criminal law - Former jeopardy - Acquittal of murder in perpetration of robbery - Section 13400, General Code - Prosecution for robbery not barred - Section 12439, General Code - Separate offenses - Res judicata inapplicable - Single act as offense against two statutes - Additional fact to prove either offense.

1. An acquittal of a defendant upon the charge of murder in the first degree, while attempting to perpetrate a robbery (under Section 12400, General Code), is not a bar to a prosecution for the crime of robbery (under Section 12432 General Code) even though committed upon the same per son named in the former charge, and the robbery was a part of the same criminal act referred to in the indictment for murder.

2. The doctrine of res adjudicata is not applicable where one is being tried for one of the substantive offenses embraced in a conspiracy to commit a robbery, and the former trial and acquittal was for another offense committed in pursuance of the same conspiracy, to-wit, murder in attempting to perpetrate a robbery, additional elements being necessary to establish the latter charge; the two are, therefore, separate and distinct offenses. (Patterson v. State, 96 ohio St, 90 117 N. E., 169, L.R.A. 1918A, 553. approved and followed.)

3. A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other. A single act may be an offense against two statutes and if either statute requires proof of an additional fact an acquittal of the offense requiring proof of the additional fact does not exempt the defendant from prosecution and punishment under the statute which does not require proof of such additional fact.

In this case the record discloses that by the action of the grand jury of Lucas county, on May 22, 1923, Samuel R. Duvall was indicted for the offense of murder in the first degree while attempting to perpetrate a robber upon one John C. Herbruck. The section of the statute under which the indictment was drawn is 12400, General Code, which provides as follows:

"Whoever, purposely, and either of deliberate and premeditated malice, or by means of poison, or in perpetrating or attempting to perpetrate rape, arson, robbery or burglary, kills another is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused recommend mercy, in which case the punishment shall be imprisonment in the penitentiary during life."

The accused entered a plea of not guilty and was put upon trial, his defense being that of alibi, and on the 20th day of June the jury returned a verdict of not guilty.

Thereafter, on August 7, 1923, the grand jury of Lucas county returned an indictment against the said Samuel R. Duvall for the offense of robbery, charging him with robbing John C. Herbruck, the indictment being based upon the same transaction embraced in the charge of murder in the first degree upon which he had already been acquitted. The robbery section of the General Code (109 O.L., 612) recited as follows:

"Section 12432. Whoever, by force or violence, or by putting in fear, steals, and takes from the person of another anything of value is guilty of robbery, and shall be imprisoned in the penitentiary not lass than 10 years nor more than 25 years."

The said Samuel R. Duvall to this indictment for robbery filed a plea in bar and a plea of res adjudicata, where upon the state filed a demurrer. The trial court sustained the demurrer, and the defendant was arraigned and stood mute, and the court entered a plea of not guilty. The matter then proceeded to trial for the offense of robbery, and the jury returned a verdict of guilty as charged in the indictment. A motion for a new trial was overruled and judgment pronounced upon the verdict. Error was prosecuted to the Court of Appeals, which court affirmed the judgment of the court of common pleas. Error is now prosecuted to this court to reverse the judgment of affirmance rendered by the Court of Appeals.

Messrs. Garrison & Phillips, for plaintiff in error.

Mr. Roy R. Stuart, prosecuting attorney; Mr. Harry S. Commager, and Mr. Harry G. Levy, for defendant in error.


The basic question in this case is whether the plea of former jeopardy interposed by the defendant in this cause should have been sustained. His right thereto is based upon the violation of Section 10, Article I of the Bill of Rights, of the Constitution of the state of Ohio, "No person shall be twice put in jeopardy for the same offense," and of Article V of the Amendments of the Constitution of the United States, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb * * *."

It is to be noted that these constitutional guaran- ties only apply to being placed in jeopardy more than once for the same offense. As said by 4 Rlackstone's Commentaries, 336:

"It is to be observed that the pleas of autrefoits acquit and autrefoits convict * * * must be upon a prosecution for the same identical act and crime.

The words "same offense" have heretofore been defined by this court in State v. Rose, 89 Ohio St. 383, 106 N. E 50, L.R.A., 1915A, 256, in this language:

"The words `same offense' mean same offense, not the same transaction, not the same acts, not the same circumstances or same situation. * * *

"It is not enough that some single element of the offense charged may have a single element of some other offense as to which the defendant had theretofore been in jeopardy, but the constitutional provision requires that it shall be the `same offense.' The usual test accepted by the text writers on criminal law and procedure is this: the defendant upon the first charge could have been convicted of the offense in the second, then he has been in jeopardy."

It will not be contended that Duvall could have been found guilty of robbery under the indictment for murder in attempting to perpetrate a robbery.

This court recognized this principle in Bainbridge v. State, 30 Ohio St. 264, 272, this language appearing in the opinion:

"While it is the right of every person not to be put in jeopardy more than once for the same offense, the principle should be so applied as not to create an immunity for crimes which do not constitute the offenses for which the criminal has once been exposed to punishment. Wilson v. State, 24 Conn. 57."

The same principle was again announced in State v. Corwin, 106 Ohio St. 638, 140 N. E., 369, the syllabus of which case recites:

"Where one is tried upon a charge of rape with force and violence, under Section 12413, General Code, and upon trial is acquitted of such charge, and thereafter is indicted under Section 12414, General Code, charging rape with consent, and interposes a plea of former jeopardy to the second indictment, such plea upon demurrer of the state should be overruled."

We are not unmindful that the diligence of counsel in the carefully prepared brief for the plaintiff in error has presented a number of cases which it is urged sustain the position of the plaintiff in error. Among them are: State v. Rosa, 72 N. J. Law, 462, 62 A. 695; State v. Cooper, 13 N. J. Law, 361, 25 Am.Dec. 490; State v. Mowser, 92 N. J. Law, 474, 106 A. 416, 4 A.L.R. 695 (annotated); People v. Grzesczak, 77 Misc. 202, 137 N.Y.S. 538; State v. Cross, 101 N. C., 770, 7 S. E., 715, 9 Am. St Rep., 53; State v. Smith, 43 vt. 324; Gilpin v. State, 142 Md. 464, 121 A. 354.

The foregoing, and other cases cited, it is claimed sustain the position of the plaintiff in error, which is that the issue of fact, the only issue for the jury to determine in the robbery trial, was the same issue of fact that was decided by the jury in the murder trial, to wit, the alibi of the plaintiff in error; hence the verdict of not guilty in the homicide case was a former acquittal and amounted also to res adjudicata between the state and the accused upon the robbery charge.

While the decisions outside this state are not uniform, yet cases from other jurisdictions may be cited wherein the same defense has been urged in behalf of one charged with a second offense growing out of the same transaction, and held not to be sufficient against the subsequent charge.

In the case of McCoy v. State, 46 Ark. 141, it appears that Mccoy and two others were jointly indicted for the murder of one McAllister. McCoy pleaded a former acquittal, but his plea was adjudicated bad upon demurrer. The evidence offered to sustain it showed that the offense of which he was formerly acquitted was an assault with intent to kill, committed upon the wife of the deceased at the time of the killing of McAllister, The theory of the defense was that the conflict in which McAllister was killed and his wife wounded was one for which two separate indictments were returned and that his defense was the same in both cases, to wit, an alibi. McCoy claimed that he was protected by the previous verdict of acquittal from any further prosecution growing out of the same affair. It was held that a plea of former acquittal of the offense charged was not sustained by proof of acquittal under the former indictment of acts of which the defendant could not have been convicted under the latter, even though the defense, to wit, alibi, was the same in both cases. One jury had posed favorably to the defendant in one trial upon the issue of alibi, and the jury in the second case returned a verdict of murder in the first degree, which verdict was sustained.

In the use of Hotema v, United States, 186...

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