Kokenes v. State, 26912.

• Citation: 13 N.E.2d 524,213 Ind. 476
• Decision Date: 10 March 1938
• Docket Number: No. 26912.,26912.
• Parties: KOKENES v. STATE.
• Court: Supreme Court of Indiana

213 Ind. 476
13 N.E.2d 524

KOKENES
v.
STATE.

No. 26912.

Supreme Court of Indiana.

March 10, 1938.

Gus Kokenes was convicted of robbery and of robbery while armed, and he appeals.

Reversed with instructions.

[13 N.E.2d 525]

Appeal from Criminal Court, Lake County; Victor K. Roberts, Special judge.
Oscar B. Thiel, of Gary, and Leo J. Lamberson, of South Bend, for appellant.

Omer Stokes Jackson, Atty. Gen., and Walter O. Lewis, Dep. Atty. Gen., for the State.

FANSLER, Judge.

The appellant was tried upon an affidavit in two counts, the first of which charged robbery, and the second the identical robbery while armed. There was a verdict of guilty upon both counts, and there was a judgment of guilty, and he was sentenced, upon both counts, the sentences to run concurrently.

Error is predicated upon the overruling of a motion to quash, and the overruling of a motion in arrest of judgment.

The first count of the affidavit charges robbery. The second charges robbery while the defendant was armed with a pistol, revolver, or gun, and that he was over sixteen years of age. Section 10–4709, Burns' Ann.St.1933, section 2409, Baldwin's Ind.St.1934, provides that, if a person over the age of sixteen commits, or attempts to commit, certain crimes, including robbery, while armed with a pistol, revolver, rifle, shotgun, machine gun, or any other firearm, or any dangerous or deadly weapon, he ‘shall be guilty of a separate felony in addition to the crimes above named.’ The appellant sought, by motion to quash the second count, and by motion in arrest of judgment, to question the constitutionality of section 10–4709, Burns' Ann.St.1933, section 2409 Baldwin's Ind.St.1934, supra, upon the ground that it offends against the provision of article 1, § 14, of the Constitution of Indiana, that: ‘No person shall be put in jeopardy twice for the same offense.’

The statute is not unconstitutional. It merely defines a crime, separate and distinct from the crimes of rape, robbery, bank robbery, petit larceny, or grand larceny, while unarmed. It does not follow, however, that a defendant may be convicted for committing a robbery and committing a robbery while armed, where the same identical robbery is involved. In Jackson v. State, 1860, 14 Ind. 327, 328, it is said: ‘The state cannot split up one crime and prosecute it in parts. A prosecution for any

[13 N.E.2d 526]

part of a single crime, bars any further prosecution based upon the whole or a part of the same crime.’ In State v. Elder, 1879, 65 Ind. 282, 285,32 Am.Rep. 69, the following rules are laid down by Biddle, J., who wrote the opinion:

‘1. When the facts constitute but one offence, though it may be susceptible of division into parts, as in larceny for stealing several articles of property at the same time, belonging to the same person, a prosecution to final judgment for stealing a part of the articles will be a bar to a subsequent prosecution for stealing any other part of the articles, stolen by the same act.

‘2. When the facts constitute two or more offences, wherein the lesser offence is necessarily involved in the greater—as an assault is involved in an assault and battery, as an assault and battery is involved in an assault and battery with intent to commit a felony, and as a larceny is involved in a robbery—and when the facts necessary to convict on a second prosecution would necessarily have convicted on the first, then the first prosecution to a final judgment will be a bar to the second.

‘3. But when the same facts constitute two or more offences, wherein the lesser offence is not necessarily involved in the greater, and when the facts necessary to convict on a second prosecution would not necessarily have convicted on the first, then the first prosecution will not be a bar to the second, although the offences were both committed at the same time and by the same act.’

The language quoted announces the unquestioned rule in cases where the offenses are of the same class, both felonies, as here, and where, as here, the lesser offense is included in the greater. An illustration is found in the case of homicide. There may be an indictment in three counts: murder in the first degree, murder in the second degree and manslaughter. The same homicide is involved in all, but the offense is aggravated by malice, or malice and premeditation. A distinction should be noted in the case of separate indictments or separate counts charging the commission of a felony, and charging a conspiracy to commit the identical felony. It is apparent that conspiracy to commit a felony does not necessarily involve the commission of the felony. See Durke v. State, 1932, 204 Ind. 370, 183 N.E. 97. The offenses here involved are in the same category. The same robbery is involved in both, but in one the offense is aggravated by the fact that the defendant was armed with a deadly weapon. If the robbery be established, but it is not proven that he was armed, there should be a conviction for robbery. If the robbery is established and that he was armed, there should be a conviction under the statute in question. Guilt under the latter necessarily implies that the defendant is guilty of the robbery. The judgment should have been for the greater offense. The court entered judgment and sentenced the defendant under both counts; the sentences to run concurrently, however. This was error, but perhaps harmless, since the sentences run concurrently.

The contention that the conviction on the first count bars a conviction on the second is untenable, since the convictions were simultaneous, and there was no former jeopardy.

Error is predicated upon the overruling of appellant's motion to suppress certain confessions. This motion was made in writing, before the trial, and was overruled without evidence being heard upon it. When the confessions were offered in evidence, appellant objected to their admission upon the ground that they were made under the influence of fear, produced by force, threats, and intimidation. The court heard the evidence, in the absence of the jury, and admitted the confessions. Their admission was made one of the causes in the motion for a new trial, and is assigned as error.

It was not error to overrule appellant's motion to suppress. The appellant sought to follow the procedure for quashing a search warrant and suppressing the evidence procured thereunder, which is not an appropriate practice in the case of confessions. See Brown v. State, 1880, 71 Ind. 470;Ogle v. State, 1920, 193 Ind. 187, 127 N.E. 547;Mack v. State, 1932, 203 Ind. 355, 180 N.E. 279, 83 A.L.R. 1349.

When the...