Gilpin v. State

• Decision Date: 17 January 1923
• Docket Number: 51.
• Citation: 121 A. 354,142 Md. 464
• Parties: GILPIN v. STATE.
• Court: Maryland Court of Appeals

121 A. 354

142 Md. 464

GILPIN v. STATE.

No. 51.

Court of Appeals of Maryland

January 17, 1923

Appeal from Criminal Court of Baltimore City; James P. Gorter Judge.

Orrin P. Gilpin was convicted of conspiracy to rob, and he appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER STOCKBRIDGE, and ADKINS, JJ.

Edward M. Hammond and William H. Lawrence, both of Baltimore (Karr Hammond & Darnall, of Baltimore, on the brief), for appellant.

Alexander Armstrong, Atty. Gen. (Lindsay C. Spencer, Asst. Atty. Gen., and Robert F. Leach, Jr., State's Atty., of Baltimore, on the brief), for the State.

PATTISON J.

The appellant was tried, convicted, and sentenced under an indictment, charging him and five others, with conspiracy to rob one Max Stichman.

The sole question presented by this appeal is whether the court below properly sustained a demurrer to the plea of former acquittal, filed by the defendant.

The plea sets forth an indictment against the appellant and three of those indicted with him in the present case, including one William Fore, charging them, in the first count, with robbing Max Stichman of $7; in the second, with assault with intent to rob; in the third, with assault and battery; and, in the fourth, with receiving said money, knowing it to have been stolen.

The plea then proceeds as follows:

"That he pleaded not guilty to said indictment and was thereupon by the verdict of said court found not guilty of the matter whereof he stood thus indicted, whereupon he was by said court duly discharged, but the said Wm. E. Fore was duly convicted under the aforesaid indictment.

At the trial of this case on the last day of March, 1922, the defendant, with William E. Fore, James P. Harris, and John B. Riter, were indicted jointly for robbery, assault with intent to rob, and assault and receiving stolen goods, the property of Max Stichman, and that the same facts charged in the second indictment sustained the first indictment, which facts and elements make up the lesser degree of crime, to wit, conspiracy alleged in the second indictment.

That the difference between the present indictment and the indictment in the trial of the case in March, 1922, was for the holdup of one Max Stichman and stealing $7 current money from the said Max Stichman, whereas in the present case the indictment is similar in all respects except in the name of the alleged offense, the same facts claimed to constitute the offense in the first indictment.

That the holdup on February 28, 1922, was one and the same offense, and the acquittal of the defendant, Orrin P. Gilpin, precludes a trial under the present indictment, in which the only difference is substitution of the lesser crime for the greater, the same person mentioned in first indictment is same Orrin P. Gilpin, charged in the present indictment, and the crime mentioned in the present indictment is the same."

That no person shall for the same offense be twice put in jeopardy is both a provision of the Constitution of the United States (Amendment 5), and an established rule of the common law, and a plea of former jeopardy is good under either. The rule forbids a second trial for the same offense, whether the accused at the former trial was acquitted or convicted.

The rule, though a simple one, is sometimes difficult in its application. The difficulty arises in determining whether the charge against the accused is the same offense, within the meaning of the rule, as that for which he has already been tried.

The offenses are not the same though growing out of the same transaction, when one differs in all its elements from the other, or when the evidence adequate to one, does not relate to, or support the other. Bishop on Criminal Law, 1, § 1051.

If the lesser offense for which the accused is put in jeopardy is an element of the greater offense of which he has been acquitted or convicted, arising out of the same criminal act, the plea of former jeopardy is a bar to such subsequent prosecution. For example: An assault is a necessary element in, and is essential to, the crime of assault with intent to rape. Therefore, when a man has been tried for the last-named offense, and either acquitted or convicted, he may interpose the plea as a complete defense to a subsequent indictment for assault, when it is founded upon the same criminal act, but when the lesser offense is a substantive offense, not involved in, or not a necessary ingredient of, the greater offense, and the evidence to support it was not essential to a conviction in the former case, the plea is not a bar to a prosecution under an indictment charging him with the commission of such lesser offense. 8 R. C. L. 146, §§ 131, 132.

In this case the defendant and others had been tried under an indictment charging him, first, with robbery; second, with intent to rob; third, with assault and battery; and, fourth, with receiving stolen money, knowing it to have been stolen.

The charge against him in the second indictment, the one under which he was tried, convicted, and sentenced in this case, was for conspiracy to rob, a distinct substantive offense, having none of the necessary elements of any of the offenses charged in the first indictment. State v. Buchanan, 5 Har. & J. 317, 9 Am. Dec. 534.

The guilt of the defendant upon any of the charges contained in the first indictment could have been established, had the evidence been sufficient without showing a conspiracy to rob. But under that indictment he could not have been convicted of such conspiracy, as it was not included in the former indictment. It is expressly stated in 16 C.J. P. 280:

"Where a conspiracy to commit a crime is a substantive offense, as is generally the case, neither an acquittal nor a conviction of a conspiracy to commit a crime is a bar to a prosecution for the commission of that crime or for aiding and abetting another to commit it. For the same reason an acquittal or a conviction of a particular crime is no bar to a subsequent indictment for a conspiracy to commit the same."

It is said, in Bishop, vol. 1, § 1066:

"An acquittal for larceny will not

...