Wе are asked to prohibit the Nicholas County Circuit Court from trying Clarence Hall for robbery. A May, 1980 two-count indictment charged Hall with first-degree murder 1 and robbery of Ralph Barnett. On the first day of trial *497 the following in camera exchange transpired between defense counsel and trial court:
[DEFENSE COUNSEL]: If your Honor please, this is an indictment that contains two counts, the first count is for murder and thе second count is for armed robbery, and as I understand the law, the defendant has the right to make a motion for severance at any time up until time for trial. At this time we move it be severed and that he be granted two separate trials on the two counts of the indictment.
THE COURT: Before I rule on this, are you gentlеmen aware, I am sure you are, and have you advised him that although the first count is a murder one count and the second count is an armed robbery count that the evidence of the robbery would likewisе come in in the murder case?
[DEFENSE COUNSEL]: He has been advised of that. I am not sure that is what the law is, but I don’t think it is. We will cross that bridge when we come to it.
THE COURT: That’s right exactly. I think the law is pretty clear on that. You have moved for severance. It is up to the State to elect which one.
[PROSECUTOR]: The State elects to try the first count.
THE COURT: The murder. The Court would grant the defendant’s motion for severance of the two counts and grant him a separate trial on each оf the two counts and the State has elected to try him on the murder count, so we will try him on the first count then, thе one alleging murder. Is there anything further before we call a jury?
[PROSECUTOR]: I can’t think of anything.
Hall was convicted for first-degree murder after a trial in which the robbery evidence had been admitted. When *498 prosecution was commеnced on the robbery charge, defendant asserted a double jeopardy bar.
Robbery is a lеsser included offense of felony-murder if a conviction for the greater offense (felony-murder) could not be had without conviction for the lesser crime (robbery).
When as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one. (Footnote and citations omitted.) Harris v. Oklahoma,433 U.S. 682 ,97 S.Ct. 2912 , 2913,53 L.Ed.2d 1054 , 1056 (1977).
Conviction for a lesser included offense after conviction for the greater crime violates Fifth Amendment protections as applied by the Fourteenth Amendment to the States.
Brown v. Ohio,
“[W]here ... a person has been tried and convicted for a crime which had various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy fоr the same offense.”
In re Nielsen,131 U.S. 176 , 188,9 S.Ct. 672 , 676,33 L.Ed. 118 , 122 (1889).
Our W. Va. Const. art, III, § 5 prohibits putting a defendant twice in jeopardy of life or liberty fоr the same offense. Syllabus Point 1 of
State ex rel. Johnson v. Hamilton, _
W. Va. _,
“ ‘In West Virginia the term ‘same offense’ [sic] as used in the double jeopardy provision of W.Va. Const., art. 3, § 5 shall be defined by either the ‘same evidence test’ which provides that offenses are the same unless one offense requires proof of a *499 fact which the other does not, or the ‘same transaction tеst’ which provides that offenses are the same if they grow out of a single criminal act, occurrеnce, episode or transaction; therefore, whichever test affords the defendant the grеater protection must be applied.’ Syl. pt. 1, State ex rel. Alan Gary Dowdy v. Dan C. Robinson, as Judge, etc.,163 W.Va. 154 ,257 S.E.2d 167 (1979).’ ” State ex rel. Johnson v. Hamilton, _ W. Va. _,266 S.E.2d 125 (1980), Syllabus Point 1.
In Johnson the Court stated: “It has always been the law that a person cannot be punished for both a lesser included offense and the greater crime when the elements of the first are necessarily includеd in the elements of the second. (Citations omitted.)” Id. at 128-129.
Did defendant’s motion for severance waive his double jeopardy right, per
Johnson, supra"!
2
Were these similar or multiple offenses arising from the same transactiоn rather than greater and lesser-included offenses, we might agree. Because the double jeopardy clause prohibits multiple trials
and multiple punishments, Conner v. Griffith,
We recently stated that in cases involving multiple count indictments: “The granting of a motion for severance for prejudicial joinder rests within the sound discretion of the trial court (citations omitted).”
Watson, supra
Prohibition granted.
Notes
Murder in the commission of certain enumerated felonies is first-degree murder. Code, 61-2-1. This is known as felony-murder. *497 Robbery is the underlying felony elevating the murder to first degree in this case.
Johnson,
which was in force at the time of Hall’s trial, has since been modified in
State ex rel. Watson v.
Ferguson, _ W. Va. _,