The evidence discloses that the obvious purposе 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 inducеd the shooting and the hurried exit from the latter’s office. Had there been no outcry, likely to be heard by other tеnants, 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, tо assure their escape. In other words, the unexpеcted happened and they did what momentary thought suggеsted, 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 оf 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 inсidental to and yet separate and distinct from the оther. The case of State vs. Rose,
“It is not enough that some single element of the offense charged may have a single element of some other offense аs to which the defendant had theretofore been in jeopardy, but the constitutional provision requires that it shall be the “same offense”. The usual test acceрted by the text-writers on criminal law and procedure is this: If thе defendant upon the first charge could have beеn convicted of the offense in the second, then hе has been in jeopardy.”
An assault 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 Fоss could not have been convicted of an assаult with intent to commit a robbery in the trial had under the prior indiсtment. The crime of shooting with intent to kill or wound and that of an assault with intent *to committ 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 triаl as to the other. Admittedly this conclusion is not in harmony with decisions in some other jurisdictions, but we believe it to be in aсcord with those of our own state.
Finding no erros in the record prejudicial to plaintiff in error, the judgment of the court of common pleas is affirmed.-