Jones v. Com.

• Decision Date: 10 June 1977
• Docket Number: 761372,Nos. 760974,s. 760974
• Citation: 218 Va. 18,235 S.E.2d 313
• Court: Virginia Supreme Court
• Parties: Gregory JONES v. COMMONWEALTH of Virginia. Record

Page 313

235 S.E.2d 313

218 Va. 18

Gregory JONES v. COMMONWEALTH of Virginia.

Record Nos. 760974, 761372.

Supreme Court of Virginia.

June 10, 1977.

Stuart H. Held, Portsmouth (Schlitz, Levy & Livesay, Ltd., Portsmouth, on brief), for plaintiff in error.

Jim L. Chin, Asst. Atty. Gen. (Anthony F. Troy, Atty. Gen., on brief), for defendant in error.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

I'ANSON, Chief Justice.

The question presented on these two appeals is whether the defendant's convictions for robbery and the use of a firearm during the commission of a felony violate the double jeopardy clauses of the Fifth Amendment to the Constitution of the United States and Article I, Section 8 of the Virginia Constitution, where both offenses arose out of the same transaction.

Record No. 760974

The defendant, Gregory Jones, was indicted for robbery of Kevin Meeks by means of a pistol, and in a separate indictment was charged with the use or attempt to use a firearm, or display in a threatening manner the weapon in committing the felony. The two cases were tried together and the jury found defendant guilty under both indictments. In accordance with the jury's verdicts, defendant was sentenced to 10 years in the penitentiary for robbery and 5 years for the use and display of the firearm.

The evidence shows that the defendant and another man entered the Family Fish House Restaurant in the city of Portsmouth around 4:00 p. m. on October 11, 1975. Defendant and the other man dragged Meeks, the manager of the restaurant, into the restaurant's office. Defendant held a gun on Meeks and forced him to give the assailants $218. Meeks was then ordered to open the safe, but before he was able to do so, the defendant struck Meeks on the head. The assailants then fled the premises.

Record No. 761372

Defendant, Gregory Jones, was indicted for robbery of Hilda White by means of a firearm, and in a separate indictment he was charged with the use or attempt to use a firearm, or display in a threatening manner the weapon in committing the felony. The two cases were tried together, and a jury found defendant guilty under both indictments. In accordance with the jury's verdict, defendant was sentenced to 10 years in the penitentiary for robbery and 5 years for the use or display of the firearm.

The evidence shows that the defendant entered Ward's Baking Company in the city of Portsmouth around 5:00 p. m. on October 18, 1975. After selecting an item for purchase, he walked to the check-out counter, displayed a gun, and took from Hilda White, an employee of the company, the sum of $195.

Defendant's contention in both of these cases is that the trial court erred in not quashing the indictments charging him with using or displaying a firearm while committing the robberies. He argues that to convict him of both robbery and the use and display of a firearm during the commission of each of the robberies violated the double jeopardy clauses of the United States Constitution and the Virginia Constitution, because the offenses arose out of the same facts, and the same elements were necessary to prove the charges under both indictments.

In the recent case of Epps v. Commonwealth, 216 Va. 150, 153-54, 216 S.E.2d 64, 67 (1975), Mr. Justice Compton summarized the principles relating to the prohibition against double jeopardy as follows:

" 'The double jeopardy clauses of the United States and Virginia Constitutions, as related to the present case, bar prosecution of a criminal charge against an accused already convicted of an identical or lesser included offense.' Rouzie and Boudreau v. Commonwealth, 215 Va. 174, 176, 207 S.E.2d 854, 856 (1974). Offenses are identical if the facts required to convict of one would necessarily convict of the other. Id. But two or more distinct and separate offenses may grow out of a single incident, warranting the prosecution and punishment of an accused for each. Comer v. Commonwealth, 211 Va. 246, 250, 176 S.E.2d 432, 435 (1970). It is the identity of the offense, and not the act, which is referred to in the constitutional guarantee against double jeopardy. Miles v. Commonwealth, 205 Va. 462, 467, 138 S.E.2d 22, 27 (1964)."

An accused may be tried under separate indictments for different offenses arising out of the same incident without violating the constitutional provisions of double jeopardy. Jones v. Commonwealth, 208 Va. 370, 376, 377, 157 S.E.2d 907, 911 (1943).

In Virginia and elsewhere, the "same evidence" test is the standard for determining whether different offenses are deemed the same for double jeopardy purposes. To determine whether two offenses are different, the test is whether one offense requires proof of an additional fact which the other does not, even though each offense may arise from the same transaction and some of the same acts may be necessary to prove both. If proof of an additional fact is required, an acquittal or conviction under either is not a bar to prosecution and conviction under the other. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911); Epps v. Commonwealth, 216 Va. at 154, 216 S.E.2d at 67; Arrington v. Commonwealth, 87 Va. 96, 100, 12 S.E. 224, 225, 10 L.R.A. 242 (1890). See also Cousins v. State, 277 Md. 383, 354 A.2d 825, 831 (1976) and the cases there collected.

In applying the foregoing test to the facts of these two cases, we must compare the elements of the offenses of robbery and use or display of firearms in the commission of a felony.

Robbery in Virginia is a common-law crime. Robbery at common law is " the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation." Mason v. Commonwealth, 200 Va. 253, 254, 105 S.E.2d 149, 150 (1958); Jones v. Commonwealth, 172 Va. 615, 618, 1 S.E.2d 300, 301 (1939).

Section 18.2-58, Code of 1950, 1975 Repl.Vol., provides how the crime of robbery, when committed under given circumstances shall be punished.

Section 18.2-53.1, ¹ Code of 1950, 1975 Repl.Vol., provided at the time the present offenses were committed, that:

"It shall be unlawful for any person to use or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner while committing a felony. Violation of this section shall constitute a separate and distinct felony and any person found guilty thereof shall be guilty of a Class 6 felony. . . ."

The crime of robbery as defined at common law involves a forceful taking "by violence or intimidation" but such force need not be by means of the use or threat of presenting a firearm. Robbery may be committed in many ways, such as by partial strangulation or suffocation, or by...