Martin v. Com., 800573

• Citation: 273 S.E.2d 778,221 Va. 720
• Decision Date: 16 January 1981
• Docket Number: No. 800573,800573
• Parties: Ernest Lee MARTIN v. COMMONWEALTH of Virginia. Record
• Court: Supreme Court of Virginia

Page 778

273 S.E.2d 778

221 Va. 720

Ernest Lee MARTIN v. COMMONWEALTH of Virginia.

Record No. 800573.

Supreme Court of Virginia.

Jan. 16, 1981.

R. Kevin Adams, Emporia, for appellant.

Richard B. Smith, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

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

CARRICO, Justice.

In this criminal case, the defendant, Ernest Lee Martin, was indicted for robbery and grand larceny. He was convicted of robbery and petit larceny, for which he was sentenced to confinement for terms of 25 years and 12 months, respectively. ¹ The sole question for decision is whether the defendant's conviction of both robbery and petit larceny constitutes double jeopardy.

The charges under review stem from the defendant's actions at the "Big G," a service station owned by Melvin Davis in Sussex County. In the early morning hours of December 29, 1978, the defendant drove his automobile into the station and directed Earl Randolph Griffin, the attendant on duty, to fill the car's gasoline tank. As Griffin was completing this task and "taking the nozzle out," the defendant displayed a shotgun and said, "give me all your money." Griffin reached into his pocket and withdrew the money but, in his fright, dropped it on the ground. Griffin was "about to pick (the money) up," but the defendant "picked (it) up" himself.

Upon the defendant's command, Griffin went inside the station building and unlocked a "refrigerator (station personnel) kept the money in." Griffin removed from the refrigerator a sum of money and handed it to the defendant.

Testifying below, Griffin was uncertain concerning the amount of money the defendant stole. At one point, Griffin stated the total amount involved was "about two hundred and fifty dollars." At other points, he said the total was "more than" $50 and "might have been" as much as $200. With respect to the amount seized from the refrigerator, Griffin could say only that it was part of the total he estimated was stolen. Asked "how much was in (his) pocket" at the time he was robbed, Griffin replied he had an unknown amount of "the company's money" and $25 of his own funds.

The robbery indictment returned against the defendant charged that, on December 29, 1978, he "unlawfully and feloniously did rob one Earl Randolph Griffin of United States currency and monies having a value of about Two Hundred Fifty Dollars ($250.00)." The grand larceny indictment alleged that, on the same date, the defendant "unlawfully and feloniously did steal United States monies and currencies having a value of Two Hundred Fifty Dollars ($250.00) belonging to Melvin Davis, trading as 'Big G' Service Station in the possession of Earl Randolph Griffin."

The double jeopardy clauses of the United States and Virginia Constitutions provide that no person shall be put twice in jeopardy for the same offense. U.S.Const., amend. V; Va.Const., art. I, § 8. These clauses apply when (1) the two offenses involved are identical, (2) the former offense is lesser-included in the subsequent offense, and (3) the subsequent offense is lesser-included in the former offense. Jones v. Commonwealth, 218 Va. 757, 759, 240 S.E.2d 658, 660, cert. denied, 435 U.S. 909, 98 S.Ct. 1459, 55 L.Ed.2d 500, 439 U.S. 892, 99 S.Ct. 249, 58 L.Ed.2d 238 (1978).

The defendant does not contend that the two offenses of which he stands convicted are identical. And he recognizes the rule enunciated in Jones, id., that grand larceny is a lesser-included offense of robbery only when the larceny is the theft expressly charged in the robbery indictment. His double jeopardy argument is based upon the propositions that the two indictments in his case charge "exactly the same theft," that proof of the robbery charge also supports his petit larceny conviction, and that the conviction of petit larceny is for an offense lesser-included within robbery.

We do not agree with the defendant. "It is the identity of the offense, and not the act, which is referred to in the constitutional guaranty against double jeopardy." (Emphasis added.) Epps v. Commonwealth, 216 Va. 150, 153-54, 216 S.E.2d 64, 67 (1975). Accord, Miles v. Commonwealth, 205 Va. 462, 467, 138 S.E.2d 22, 27 (1964). "It is well settled that two or more distinct and separate offenses may grow out of a single incident or occurrence, warranting the prosecution and punishment of an offender for each." Jones v. Commonwealth, 208 Va. 370, 375, 157 S.E.2d 907, 910 (1967). Obviously, therefore, if an accused is prosecuted for multiple offenses based upon distinct and separate acts, the offenses would be neither identical nor lesser-included for double jeopardy purposes. See Ashby v. Commonwealth, 208 Va. 443, 445-46, 158 S.E.2d 657, 659-60 (1968), cert. denied, 393 U.S. 1111, 89 S.Ct. 884, 21 L.Ed.2d 808 (1969).

Jones v. Commonwealth, supra, presented a situation strikingly similar to the one at hand. There, as here, the accused was indicted for both robbery and grand larceny. The evidence showed that the accused, armed with a pistol, entered the office of a Holiday Inn and forced the clerk in charge to surrender the money in a cash drawer and the keys to the motel's "courtesy car." The accused then required the clerk to accompany him to the car, parked some 200 yards from the office, and to open the driver's door. The accused entered the car and drove away. He was convicted of robbery based upon the theft of the money and of grand larceny for the theft of the automobile.

Affirming in Jones, we rejected the accused's argument that his grand larceny conviction was for a lesser-included offense of the robbery charge upon which he was also convicted. We pointed out that one offense is not lesser-included within another unless all its elements are included in the other. We observed that theft is an essential component of robbery, charged as such in every robbery indictment, and that a robbery indictment includes, therefore, all elements of whatever larceny offense is charged, whether grand or petit. Accordingly, we said that the larceny offense so charged is lesser-included in robbery. We found, however, that the larceny of the "courtesy car" was not charged in the robbery indictment. And we held that, because the value of the car was one of the essential elements of the grand larceny charge but not of the robbery, the accused's larceny conviction was not for an offense lesser-included within the robbery charge. ²

The accused in Jones argued also that his conviction of both robbery and grand larceny was barred by Code § 19.2-294, which provides that "(i)f the same act be a violation of two or more statutes ... conviction under one of such statutes ... shall be a bar to a prosecution or proceeding under the other or others." While an argument based upon this statute "is not exactly a defense of former jeopardy ... it amounts to such a defense in purpose and desired effect." Epps v. Commonwealth, 216 Va. at 155, 216 S.E.2d at 68.

Particularly pertinent here is this court's disposition of the statutory double jeopardy argument in Jones. In rejecting the argument, we discussed the accused's contention that the rule in Holly's Case ³ barred his conviction of both robbery and grand larceny. As quoted in Jones, the Holly rule provides:

" 'The theft of several articles at one and the same time constitutes an indivisible offense, and a conviction or acquittal of any one or more of them is a bar to a subsequent prosecution for the larceny of the others.' "

218 Va. at 761, 240 S.E.2d at 661.

We said in Jones that the Holly rule was inapplicable in two respects:

First, the rule applies only to a case involving multiple larceny prosecutions predicated upon the theft of multiple articles stolen contemporaneously. Defendant was prosecuted for only one larceny offense. ⁴

Second, while multiple articles were stolen, they were not stolen "at one and the same time". Larceny of the money was complete and the act underlying that offense ended the moment the money was taken and carried away. Larceny of the car, located two hundred yards from the scene of the first theft, and the act underlying that offense occurred at a different place at a later point in time. True, the two thefts involved property of the same owner and were committed by the same criminal agent during a continuing course of intimidation of the same victim; in those respects, the two acts are similar. But, like the statutory rule, the rule in Holly's Case forbids multiple prosecution of offenses springing from the same criminal act. Here, in terms of time and situs, the two thefts involved two separate and distinct acts of caption and two different acts of asportation.

(T)herefore ... the acts which constituted the two offenses of which defendant was convicted were not "the same act" within the meaning of Code § 19.2-294.

218 Va. at 761, 240 S.E.2d at 661-62.

Admittedly, there are differences between Jones and the case at hand. We believe, however, that the logic of the just-quoted language applies with equal force here.

Where the robbery indictment in Jones was based upon the theft of money from the cash drawer and the grand larceny indictment was grounded upon the theft of the "courtesy car," both indictments here involve the theft of money and, to complicate matters further, the amounts stated in the two indictments are similar. The robbery indictment charges a theft of "about" $250 and the larceny indictment alleges a taking of $250. It does not follow, however, that this similarity requires the conclusion that the two indictments charge the same theft. Without a listing of the serial numbers of the bills making up the two amounts, it is impossible to determine from a mere statement of the amounts whether they involve the same or different "dollars." The similarity could result from nothing more than coincidence. Furthermore, the indictments identify different...