
    Foss v. The State of Ohio.
    (Decided April 14, 1930.)
    
      Messrs. Mulhollcmd <& Hartmcmn and Mr. J. W. Hackett, for plaintiff in error.
    
      Mr. Leroy W. Hunt, prosecuting attorney, and Mr. Clarence A. Irwin, for defendant in error.
   Lloyd, J.

In the April term, 1929, of the court of common pleas, an indictment containing two counts was returned by the grand jury against Edwin Foss, alias D. Cohn, alias E. Singer, alias E. Fleming, and Joe Berger, alias J. W. Bertson. The first count of this indictment was for the shooting of Karl Irwin in Toledo on May 7,1929, with intent to kill him, and the second count thereof charged that the shooting was with intent to wound. Foss, pleading not guilty to this indictment, was tried thereon, the jury returning a verdict finding him “not guilty as charged in either count of the indictment, but guilty of assault and battery. ’ ’

The record of this trial is not before us, but it was stated by counsel in argument that after the return of the verdict a nolle prosequi was entered with the consent of the court, and that sentence was not imposed, and also that Berger, not having been found, had not been arrested or tried.

Thereafter, at the same term of court, another indictment, growing out of the same indictment upon which the first indictment was founded, was returned by the grand jury against Foss and Berger. This indictment also contained two counts; the first charging an assault upon Irwin on May 7, 1929, with intent to commit robbery, and the second charging an assault upon Irwin with intent to hill him. With the consent of the court, a nolle prosequi was entered as to the second count of this indictment. Thereafter, on October 28, 1929, the defendant Foss filed a plea in bar to the indictment, setting forth therein the first indictment upon which trial was had, that he had been arraigned thereon, had pleaded not guilty thereto, and that upon trial the jury had returned a verdict finding him not guilty as charged in either count of the indictment, but guilty of assault and battery. The defendant then sets forth in this plea the first count of the second indictment, as returned by the grand jury, and prays that “he may be dismissed and discharged from the said premises in the present indictment specified.” To this plea of the defendant a demurrer was filed and sustained. A trial was then had, resulting in a verdict of guilty as charged in the indictment. Foss was not called as a witness and did not testify. A motion for a new trial being overruled, he was sentenced to the penitentiary for a minimum period of ten years. He now claims that the judgment of the court of common pleas should be reversed, and he be discharged, because : First, there is no evidence in the record of an intent to rob; and, second, his plea in bar should have been sustained.

The evidence discloses that Irwin had lived in Toledo since 1899, and on May 7,1929, and theretofore, was engaged in the business of buying and selling diamonds. As he stated it: “I handled diamonds, watches, mountings, platinum and fine pieces.” In his office, a room about 16 feet square, located on the tenth floor of the Second National Bank Building in Toledo, was a safe where he kept his stock in trade. In the office were two windows, equipped with shades, and a closet for hats and coats. On the Friday preceding May 7, 1929, a man, giving his name as Berger, came to his office with a ring which he desired mounted. Irwin told him that the stones in the ring were not diamonds and not worth remounting. Thereupon Berger asked to see some diamond rings. Irwin took from his safe a tray of diamond rings, and Berger picked out four, which he asked to have laid aside “until Monday or Tuesday” when he would “bring the young lady in to look at them.” Irwin put the rings in an envelope upon which he wrote Berger’s name and placed it in the safe. In January, 1929, when Irwin inventoried his stock, he had in the neighborhood of $40,000 in merchandise in the safe, and on Tuesday, May 7, 1929, he had therein merchandise of approximately the value of $35,000. About 9 o’clock on the morning of the latter date, Irwin went to his office. Entering it, he went to the closet to hang up his overcoat and hat, and, as he opened the door, two men concealed in the closet sprang at him. Turning away from the door he made an outcry and was thereupon shot, the bullet striking him back of one of his ears and lodging in his cheek. The shooting and outcry attracted the attention of numerous other tenants in the building, who saw two men running down the stairs, one of whom, identified as Foss, shouted: “Call the police! Call the police! ’ ’ One witness testified that what he said was: “Help, police! There has been a robbery up there.” One of these men went down the stairs and out of the building by the front door. The other, opening a window on the sixth floor of the building, went out upon and down the fire escape. Upon reaching the ground he ran along Madison avenue, and, turning at St. Clair street, entered the Ft. Meigs Hotel. Iii one of the pockets of an overcoat dropped by one of them were found three coils of silk wire, called by one of the witnesses “baling wire,” that is, wire adapted for use in tying or binding a person. Foss, under the name of Singer, and Berger had registered at the Ft. Meigs Hotel, the one on March 10th and the other on April 27th, and were still registered as guests of the hotel on May 7th. They had been seen together almost daily for two or three weeks prior to May 7th, and as late as 1 o’clock a. m. of that date. Two or three weeks later, Foss was found by police officers in New York City and brought to Toledo. Berger left Toledo and his whereabouts are unknown. The evidence shows, also, that Irwin did not know either Foss or Berger, or they him. No reason is disclosed for the shooting, other than as an incident to obtaining the diamonds and other merchandise in the safe.

The evidence discloses that the obvious purpose of the two men who jumped at Irwin when he entered his office was to subdue.him and take from him such jewelry as was on his person, and with his aid, or otherwise, open the safe and take therefrom whatever diamonds and other merchandise might be found therein. It is evident that the outcry of Irwin induced the shooting and the hurried exit from his office. Had there been no outcry, likely to be heard by other tenants, the intent and purpose to rob, no doubt, would have been accomplished. It is clear to us that when these men sprang at Irwin from the closet there was no intent to shoot. The necessity arose thereafter, to assure their escape. In other words, the unexpected happened' and they did what momentary thought suggested; but the fact that -their original purpose was thwarted, and Irwin was shot, does not in any way destroy the intent with which primarily the assault was made. Foss may have been guilty not only of shooting with intent to kill, but also of an assault with intent to commit robbery. "We see no reason why the one may not be incidental to and yet separate and distinct from the other. The case of State v. Rose, 89 Ohio St., 383, 106 N. E., 50, L. R. A., 1915A, 256, has been cited with approval in subsequent decisions of the Supreme Court, among which are State v. Corwin, 106 Ohio St., 638, 140 N. E., 369, and Duvall v. State, 111 Ohio St., 657, 146 N. E., 90, and we believe is decisive of the questions presented in the instant case. In the Bose case the court said at page 387:

“It is not enough that some single element of the offense charged may have a single element of some other offense as to which the defendant had theretofore been in jeopardy, but the constitutional provision requires that it shall be the ‘same offense.’ The usual test accepted by the text-writers on criminal law and procedure is' this: If the defendant upon the first charge could have been convicted of the offense in the second, then he has been in jeopardy.”

An assault with intent to commit robbery involves an assault and an intent to commit robbery. Shooting with intent to kill or wound involves shooting, or shooting at, another person, with malicious intent to kill or wound such person. Obviously Foss could not have been convicted of an assault with intent to commit a robbery in the trial had under the prior indictment. The crime of shooting with intent to kill or wound and that of an assault with intent to commit robbery are in our judgment separate and distinct offenses, and conviction as to one of them, or of an included offense, or acquittal, would not operate as a bar to indictment and trial as to the other. Admittedly this conclusion is not in harmony with decisions in some other jurisdictions, but we believe it to be in accord with those of our own state.

Finding no errors in the record prejudicial to plaintiff in error, the judgment of the court of common pleas is affirmed.

Judgment affirmed.

Williams and Richards, JJ., concur.  