Novak v. State
| Decision Date | 01 December 1921 |
| Docket Number | 37. |
| Citation | 115 A. 853,139 Md. 538 |
| Parties | NOVAK v. STATE. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Baltimore County; Walter W. Preston Judge.
Frank Novak was convicted of robbery, assault, and receiving stolen goods, and he appeals. Affirmed.
Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER STOCKBRIDGE, and OFFUTT, JJ.
Albert S. J. Owens, of Baltimore (Louis Samuels and Saul A. Harris both of Baltimore, on the brief), for appellant.
Alexander Armstrong, Atty. Gen. (Lindsay C. Spencer, Asst. Atty. Gen and H. Courtenay Jenifer, State's Atty., of Towson, on the brief), for the State.
The appellant was tried, convicted, and sentenced under an indictment containing four counts, which charged that he, together with George D. Jenkins, Howard E. Dorsey, and Crilley D. Bell, on August 14, 1920, in Baltimore county, (1) robbed a certain Harrison Crowell of 1,296 quarts of whisky belonging to Zucker-Steiner & Co., (2) assaulted Harrison Crowell with intent to rob him of certain goods and chattels of Zucker-Steiner & Co., (3) assaulted and beat Harrison Crowell, and (4) unlawfully received certain stolen goods and chattels of Zucker-Steiner & Co. An important question in the case is whether the court below properly sustained a demurrer by the state to a plea of former acquittal filed by the defendant. In substance the plea states that the defendant was tried and acquitted under an indictment containing four counts, which charged that he, together with George D. Jenkins, Howard E. Dorsey, and Crilley D. Bell, on August 14, 1920, in Baltimore county, (1) robbed a certain Walter Sklon of 1,296 quarts of whisky belonging to Zucker-Steiner & Co., (2) assaulted Walter Sklon with intent to rob him of certain goods and chattels of Zucker-Steiner & Co., (3) assaulted and beat Walter Sklon, and (4) unlawfully receivered certain stolen goods and chattels of Zucker-Steiner & Co. The plea alleges that the evidence produced at the trial under the indictment just referred to showed that William Harrison Crowell and Walter Sklon were in charge of a truck loaded with 250 cases of liquor belonging to Zucker-Steiner & Co. and had a breakdown on the Belair road in Baltimore county, on or about August 14, 1920, and were then and there robbed of the liquor. It is further stated in the plea that the robbery described in the offense to which both of the indictments refer, and that the acquittal of the defendant on all the counts of the indictment previously tried precludes his trial under the present indictment, which is said to differ from the other only in the substitution of the name of Harrison Crowell for that of Walter Sklon as the person upon whom the assault and robbery were committed.
The plea is addressed to the whole of the present indictment, and it must therefore be a sufficient answer to each count of the indictment in order to be held good as against a demurrer. Fox v. State, 89 Md. 381, 43 A. 775, 73 Am. St. Rep 193; Keller v. State, 122 Md. 689, 90 A. 603. It is quite evident that as to the third count the plea is inadequate. In that count the defendant is charged with assault and battery on Harrison Crowell, while the plea refers to the defendant's acquittal under an indictment charging him with assault and battery on Walter Sklon. The fact that the two offenses may be attributable to the same occasion does not entitle the defendant to rely upon his acquittal of an assault upon one person as a bar to his prosecution for a similar attack upon a different individual. But, with respect also to the first and second counts of the indictment, the plea is insufficient. Its theory is that, because Crowell and Sklon were both in charge of the truck from which the whisky was taken, and were both victims of the robbery, the failure to convict the defendant on a charge of robbing Sklon of the whisky renders him immune from criminal liability for a similar offense committed against Crowell at the same time and place. In support of this defense it is argued that the robbery charged in the two indictments was a single transaction, involving the same persons and property, and constituting but one offense against the state. If the defendant had been charged in each instance simply with the larceny of the whisky mentioned in the two indictments, the contention now made in his behalf would have greater force. But the larceny was only one of the elements of the robbery of which the defendant has been convicted. He was charged with feloniously assaulting a named individual and taking the whisky from him against his will. It is no answer to such a charge to say that he had been...
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