
    No. 7
    
    No. 18468
    Samuel R. Duvall v. The State of Ohio.
    Error to the Court of Appeals of Lucas county.
    333. CRIMINAL LAW—Acquittal of defendant on charge of murder while attempting to commit a robbery, no bar to prosecution for robbery, the two being distinct offenses.
   DAY, J.

1. An acquittal of a defendant upon the charge of murder in the first degree while attempting to perpetrate a robbery (under Section 12400, General Code) is not a bar to prosecution for the crime of robbery (under Section 12432, General Code), even though committed upon the same person named in the former charge and the robbery was a part of the same criminal act referred to in the indictment for murder.

2. The doctrine of res adjudicata is not applicable where one is being tried for one of the substantive offenses embraced in a conspiracy to commit a robbery, and the former trial and acquittal was for another offense committed in pursuance of the same conspiracy, to-wit, murder in attempting to perpetrate a robbery, additional elements being necessary to establish the latter charge; the two are, therefore, separate and distinct offenses. (Patterson v. State, 96 Ohio St., 90, approved and followed.)

3. A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other. A single act may be an offense against two statutes; and if either statute requires proof of an additional fact, an acquittal of the offense requiring proof of the additional fact does not exempt the defendant from prosecution and punishment under the statute which does not require proof of such additional fact.

Judgment affirmed.

Marshall, C. J., Robinson, Jones, Matthias, Allen and Conn, JJ., concur.  