Newell v. State

• Citation: 371 A.2d 118
• Parties: Kenneth NEWELL v. STATE of Maine and Richard M. Oliver, Warden.
• Decision Date: 16 March 1977
• Court: Supreme Judicial Court of Maine (US)

Page 118

371 A.2d 118

Kenneth NEWELL v. STATE of Maine and Richard M. Oliver, Warden.

Supreme Judicial Court of Maine.

March 16, 1977.

Winchell & Buckley by David J. Leen, Bangor, for plaintiff.

Charles K. Leadbetter, Asst. Atty. Gen., Augusta, for defendants.

Before DUFRESNE, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY and GODFREY, JJ.

ARCHIBALD, Justice.

On April 25, 1974, the petitioner entered pleas of guilty to informations charging him with assault and battery, high and aggravated (17 M.R.S.A. § 201), and with robbery (17 M.R.S.A. § 3401), and received appropriate sentences to the Maine State Prison. He later filed a petition seeking post conviction relief which was submitted to a single Justice on an agreed statement of facts. The Justice denied the petition and we issued a certificate of probable cause permitting the petitioner to proceed with this appeal. 14 M.R.S.A. § 5508.

We deny the appeal.

The petitioner contends that his convictions of assault and battery, and robbery, are violative of both the Federal and State constitutional prohibitions against double jeopardy because both offenses arose from the 'same incident and same occurrence.' Essentially, the petitioner argues that since the assault and battery occurred during the course of the robbery and was an integral part thereof, he cannot, constitutionally, be convicted of both crimes.

The Fifth Amendment to the United States Constitution provides, in pertinent part 'No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb. . . .' ¹

It has long been established in this state that the same facts may constitute a violation of several criminal statutes, and that each offense may be punished separately. See State v. Thayer, 281 A.2d 315, 318 (Me.1971); State v. Lindsey, 254 A.2d 601, 603 (Me.1969); State v. Barnette, 158 Me. 117, 120, 179 A.2d 800, 801 (1962); State v. Lawrence, 146 Me. 360, 362, 82 A.2d 90, 92 (1951); State v. Farnham, 119 Me. 541, 545, 112 A. 258, 259-60 (1921); State v. Jellison, 104 Me. 281, 284, 71 A. 716, 718 (1908); State v. Inness, 53 Me. 536, 537 (1866).

In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the Supreme Court specifically addressed the problem and held:

'The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.'

See also United States v. Garner, 529 F.2d 962, 971 (6th Cir. 1976); United States v. Chrane, 529 F.2d 1236, 1238 (5th Cir. 1976).

In State v. Leeman, 291 A.2d 709 (Me.1972), we adopted the following test to determine under what circumstances one crime is necessarily included in another:

'To be necessarily included in the greater offense, the lesser offense must be such that it is impossible to commit the greater without having committed the lesser.'

Id. at 711, quoting Orfield, 5 Criminal Procedure Under the Federal Rules, § 31.12. See also Little v. State, 303 A.2d 456, 458 (Me.1973); Bessey v. State, 297 A.2d 373, 375 (Me.1972).

Applying the principles enunciated in Blockburger and Leeman, supra, to the facts of this case, it is clear that the petitioner's constitutional rights have not been abridged by his dual convictions.

17 M.R.S.A. § 201 defines the offense of assault and battery in the following terms:

'Whoever unlawfully attempts to strike, hit, touch or do any violence to another however small, in a wanton, willful, angry or insulting manner, having an intention and existing ability to do some violence to such person, is guilty of an assault. If such attempt is carried into effect, he is guilty of an assault and battery.'

Robbery is defined by 17 M.R.S.A. § 3401 as follows:

'Whoever, by force and violence or by putting in fear, feloniously steals and takes from the person of another property that is the subject of larceny is guilty of robbery . . ..'

An essential element of the crime of assault and battery is the unlawful touching of the person of another. Robbery, on the other hand, may be accomplished without any such touching. Conversely, to prove robbery the State must demonstrate the existence of a specific intent to steal, an element foreign to the crime of assault and battery. As the Justice below stated: 'The two offense are separate and distinct.' Accord State v. Chernick, 278 S.W.2d 741, 746 (Mo.1955); Allen v. Raines, 360 P.2d 949, 952 (Okl.Cr.App.1961); Martin v. State, 77 Ga.App. 297, 48 S.E.2d 485, 488 (1948).

The authorities cited by the petitioner are unpersuasive.

In State v. Wines, 47 N.J.Super. 235, 135 A.2d 543, 544 (1957), the Court reversed a conviction for assault with intent to rob, where the defendant had also been convicted of armed robbery which 'was the end result of (a) single occurrence' where 'the alleged assault was an integral part . . . of the robbery.' Wines did not, however, involve a situation in which the defendant committed an independent battery upon his victim during the course of the robbery.

People v. Logan, 41 Cal.2d 279, 290, 260 P.2d 20, 26 (1953), is also inapposite. In Logan the defendant struck his victim for the purpose of robbing her. The Supreme Court of California reversed the defendant's conviction of assault with a deadly weapon, stating that

'(t)he one act of inflicting force with the bat cannot both be punished as assault with a deadly weapon and availed of by the People as the force necessary to constitute the crime of robbery . . ..'

260 P.2d at 26. While a preliminary analysis of the Logan decision would appear to support the petitioner's position, the decision in that case was actually premised on the existence of a statute specifically prohibiting a single act from being the basis of conviction for more than one offense. See Ex parte Chapman, 43 Cal.2d 385, 273 P.2d 817, 819 (1954).

In the instant case neither information charged an 'assault with intent to rob.' 17 M.R.S.A. § 3402. Thus, neither an assault nor an assault and battery was included in the information charging robbery. We are mindful of the fact that the agreed statement on which the matter was submitted to the single Justice recited that both offenses arose 'from the same incident and same occurrence.' The defendant in his brief argues:

'Clearly, the information transcript dated April 25, 1974, indicates that if the Appellant was tried on both the Assault and Battery (High and Aggravated) and Robbery offenses, the proof to be introduced by the State would indeed be similar if not the same in both cases. (See Transcript, Pages 6 and 13).'

The transcript dated April 25, 1974, is of the proceedings when the defendant entered guilty pleas in accordance with Rule 11(a), M.R.Crim.P. On page 6 above referred to, the County Attorney describes the defendant's conduct as...