State v. Donald Deso
| Decision Date | 04 October 1938 |
| Citation | 1 A.2d 710,110 Vt. 1 |
| Parties | STATE v. DONALD DESO |
| Court | Vermont Supreme Court |
May Term, 1938.
1. Conviction of Lesser Offense on Information Charging Greater---2. Inclusion of Lower Degrees in Indictment or Information---3. Taking from Person in Prosecution for Robbery under P. L. 8400---4. What Constitutes in Presence of Person with Respect to Robbery---5. Failure to Allege Ownership of Money Taken---6. Lesser Offenses Assumed to be Included in Information---7. Evidence Held Sufficient to Sustain Conviction of Lesser Offenses of Robbery, etc.---8. To Show Battery---9. Creating Apprehension of Peril as Element of Assault---10. Dangerous Weapon in Assault---11. Intimidation as Element in Robbery and Assault with Intent to Rob---12. Intent to Use Unloaded Revolver as Club as Showing Intent to Maim---13. Entry of Nolle Prosequi during Trial---14. As Bar to Another Indictment or Information---15. Acquittal or Conviction as Bar to Prosecution for Related Offense---16. Directing Verdict as to Highest Offense Charged as Barring Further Proceedings on Lesser Offenses---17. Procedure Where Evidence Insufficient to Sustain Highest Offense Charged---18. No Bar to Further Prosecution Until Final Verdict on One of Offenses Charged---19. No Provision against Double Jeopardy in Vermont Constitution.
1. Where indictment or information charges offense which includes within it another lesser offense or one of lower degree, it is sufficient to prove so much of charge as proves respondent to have been guilty of substantial crime, therein stated, although not to full extent charged against him, so that if State fails to prove the greater offense but proves the less, respondent may be convicted of the less.
2. Indictment or information charging highest degree of offense includes all lower degrees.
3. In prosecution under P. L. 8400, providing penalty for person "who assaults another and robs, steals and takes from his person money or other property," etc., while armed with dangerous weapon, with intent if resisted to kill or maim, requirement of taking from the person is satisfied by taking from his presence.
4. A thing is in presence of person in respect to robbery, which is so within his reach, inspection, observation or control that he could, if not overcome by violence or prevented by fear, retain his possession.
5. In prosecution for assault and robbery while armed with dangerous weapon, failure to allege in information ownership of money or property taken is amendable.
6. In criminal prosecution, Supreme Court would assume, where no faults were pointed out, that information, admitted by respondent to be sufficient to charge assault and robbery while armed with dangerous weapon, with intent to maim if resisted, under provisions of P. L. 8400, also included all lower degrees of offenses of like nature, including simple assault.
7. In criminal prosecution, where according to evidence respondent's confederate held up storekeeper by sticking unloaded revolver in his ribs, while respondent took money from cash register, respondent could have been convicted both as principal and as aiding and abetting, of all degrees of robbery and attempt to rob described in statutes, except the highest---robbery while armed with dangerous weapon with intent if resisted to kill or maim---and of larceny and simple assault.
8. In prosecution under P. L. 8400 for assault and robbery while armed with dangerous weapon, with intent to maim if resisted evidence that respondent's confederate, in respondent's presence, stuck unloaded revolver in victim's ribs, would be sufficient to make respondent guilty of a battery and so to sustain his conviction for simple assault.
9. To sustain criminal complaint for assault, there is no need for party assailed to be put in actual peril if only a well-founded apprehension is created, so that apparent power to do bodily harm is sufficient, and what is denoted to party assailed by conduct of assaulting party and attending circumstances is material rather than his secret intent or undisclosed fact of his ability or inability to commit battery.
10. In ordinary case of aggravated assault dangerous weapon is weapon which in way it is used or attempted to be used may endanger life or inflict great bodily harm, and whether revolver used as bludgeon is dangerous weapon depends upon its size, weight and manner of using it.
11. In cases of robbery and assault with intent to rob, offense committed or attempted to be committed is independent of the assault and may as well be accomplished by intimidation as by force.
12. In prosecution for assault and robbery while armed with dangerous weapon, with intent if resisted to kill or maim, evidence of confederate's intent to use unloaded revolver of considerable weight as club if resisted in course of hold-up was not sufficient to warrant finding beyond reasonable doubt of intent to maim victim where revolver was not in fact so used.
13. In criminal prosecution, State's attorney may, at any stage of trial before verdict, enter nolle prosequi by permission of court, but granting of such permission is matter of discretion and if case appears clear one for respondent, he is entitled to verdict of acquittal.
14. Nolle prosequi entered by permission of court during trial of criminal cause is not bar to another indictment or information for same offense.
15. Where one offense is necessary element in, and constitutes part of, another, and both are in fact but one transaction, acquittal or conviction of one is bar to prosecution for the other.
16. In prosecution under P. L. 8400 for assault and robbery while armed with dangerous weapon, with intent to maim if resisted, court could not have directed verdict for respondent as to highest offense charged without barring further proceedings on lesser offenses included therein.
17. In criminal prosecution, where evidence is sufficient to sustain conviction for one or more of lesser offenses included in information but fails to sustain highest offense charged, court should withdraw highest offense from consideration of jury and instruct them they can only find respondent guilty of lesser offenses.
18. Until there is final verdict of guilty or not guilty of some one of offenses charged in information or indictment, there can be no bar to further prosecution for any offense charged, from the lowest to the highest.
19. Constitution of Vermont contains no provision against double jeopardy, and statute giving State right of exception in criminal case equal in all respects to that possessed by respondent is not infringement of due process of law.
INFORMATION in two counts charging assault and robbery while armed with a dangerous weapon, with intent to maim if resisted, under P. L. 8400, and aiding and abetting another in the commission of the same offense. Plea, not guilty. Trial by jury at the March Term, 1938, Chittenden County, Jeffords, J., presiding. At the close of the State's case the respondent moved for a directed verdict. The State was permitted by the court to enter a nolle prosequi. The respondent excepted. The opinion states the case.
Exceptions overruled.
Chief Justice Powers, having deceased, took no part in the decision of this case.
P. C. Warner and Leon D. Latham, Jr., for the respondent.
Lawrence C. Jones, Attorney General, and K. Paul Fennell, State's Attorney, for the State.
Present: POWERS, C. J., MOULTON, SHERBURN, BUTTLES and STURTEVANT, JJ.
The first count of the information in this case charges that "Donald Deso * * * on * * * at * * * did then and there unlawfully, wilfully and feloniously assault Michael A. Mangini and then and there rob, steal and take from the said Mangini, Thirty-two ($ 32.00) Dollars, of the lawful money of the United States, then and there the subject of larceny, then and there being armed with a dangerous weapon, to wit, a revolver, with intent to maim the said Mangini, if he, the said Mangini then and there had resisted * * *." The second count is for aiding and abetting Warren Rich in the commission of this offense.
The State's evidence tended to show that the respondent and Warren Rich returned together from St. Albans to Burlington, and that on the way they planned to hold up a store at the latter place. After walking around the streets of Burlington they went into one store and made a purchase, but not liking the looks of the proprietor, withdrew without attempting a holdup. They then walked along the street until they came to the variety store of Michael Mangini, which they decided would be a good one to hold up before they entered. At this time Deso had an empty revolver in his pocket and a box of cartridges for it, while Rich had some brass knuckles he had gotten from Deso and an empty automatic revolver but no cartridges for it. They went into the store and bought some ice cream sodas. While they were sitting down and eating these, Deso asked Rich who was going to hold up the proprietor, and Rich said he would. Rich then got up and asked Mangini for some cigars, and when Mangini went to get them Rich stepped in behind him and stuck his revolver in his ribs and told him to "stick them up," while Deso went to the cash register and took thirty dollars. Before going into the store Rich had decided to use his revolver as a club but had not told Deso of this intention, and when Mangini resisted he would have hit him with it, but Mangini was too quick for him and he didn't have a chance. They both fled and were later apprehended.
After the State had rested the respondent moved for a directed verdict, whereupon, at the court's suggestion, the State was permitted to enter a nolle prosequi. The respondent excepted to the failure of the court...
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State v. Kuzawski
...gun was unloaded because "assault was accomplished by intimidation" and weapon, though unloaded, intimidated victim); State v. Deso, 110 Vt. 1, 8, 1 A.2d 710, 714 (1938) ("In the ordinary case of an aggravated assault a dangerous weapon is a weapon which in the way it is used or attempted t......