26 Ohio St. 2d 119 | Ohio | 1971
Lead Opinion
Appellant contends that his acquittal on the charge of receiving certain stolen property constitutes a bar to his prosecution on a charge of concealing the same stolen property. His contenton is founded upon the theory that a single offense is committed by the doing of any one of or combination of the three acts enumerated in- R. C. 2907.30 which, in pertinent part, provides:
“No person shall buy, receive, or conceal anything of value which has been stolen * * * knowing it to have been stolen * *
If appellant’s position is sound, his prosecution on the concealing charge subsequent to his acquittal on the receiving charge would place him twice in jeopardy for the same offense, contrary to the prohibitions in Section 10, Article I of the Ohio Constitution and the Fifth Amendment to the United States Constitution.
The Ohio and the United States constitutions provide that no person shall twice be put in jeopardy for the “same offense.” Consequently, an identity of offenses is the sine qua non of double jeopardy. Blockburger v. United States (1932), 284 U. S. 299; United States v. Randenbush (1834), 33 U.S. 288. Furthermore, it is permissible for a legislative authority to statutorily “carve” a single transaction into more than one offense. Gore v. United States (1958), 357 U. S. 386; State v. Ferguson (1964), 175 Ohio St. 390, 195 N. E. 2d 794.
The area of identity of offenses was examined extensively in Blockburger. In that case, at page 304, the court stated the following:
“ * * * The applicable rule is that where the same
Clearly, then, before the test as enunciated above may be employed in the determination of whether a single offense or multiple offenses exist, there must be two distinct offenses described by statute. Unless that condition is present, there is obviously an identity of offenses, and the Blochburger test is rendered inapplicable. Therefore, a legislative body may provide that what could constitute separate offenses under that test be only a single statutory offense.
While buying, receiving, and concealing stolen property might appear to state separate offenses under the Blockburger test, we hold that the General Assembly, in R. C. 2907.30, has set forth one statutory offense. Whether predecessors of R. C. 2907.30 set forth separate courses of criminal conduct or only one, which may be fulfilled by any one of three acts or a combination thereof, has been the subject of consideration of this court on three occasions in as many different contexts. See Holtz v. State (1876), 30 Ohio St. 486; Smith v. State (1898), 59 Ohio St. 350, 52 N. E. 826; State v. Schultz (1917), 96 Ohio St. 114, 117 N. E. 30. The results in those cases were varied, and the court makes no attempt here to reconcile them. However, the court does find the Schults case, holding that but a single course of criminal conduct was proscribed, compelling, and adopts its reasoning.
Schultz was indicted for receiving and concealing stolen property under a statute containing substantially the same language as R. O. 2907.30. His claim that the indictment was bad for duplicity was rejected for the reason that the statute was construed to proscribe but one offense. That conclusion was reached by the following reasoning in Schultz, supra, at page 120:
“ ‘A statute often makes punishable the doing of one
This rule is sound because it permits the sensible construction that R. C. 2907.30 was enacted to deal with a single course of criminal conduct—dealing in stolen property.
State v. Ferguson, supra (175 Ohio St. 390), is cited by the state as authority for the proposition that R. C. 2907.30 creates three separate and distinct offenses. Ferguson was indicted on two counts of murder in the first degree under R. C. 2901.01, which provides, as follows:
“No person shall purposely, and either of deliberate and premeditated malice, or by means of poison, or in perpetrating or attempting to perpetrate rape, arson, robbery, or burglary, kill another.”
The first count charged that he killed purposely while attempting to perpetrate a robbery. The second charged that he killed purposely with deliberate and premeditated malice. Although, in Ferguson, the court held that R. C. 2901.01 created a number of distinct offenses of murder in the first degree, Ferguson may be distinguished from the present case in three very important respects. First, the Ferguson decision dealt only with the application of the BlocJcburger test without first determining whether R. C. 2901.01 established one or many statutory offenses under the rule of construction in Schultz. Rather, Ferguson dealt solely with whether proof of killing purposely and with deliberate and premeditated malice required proof of facts not required for proof of killing purposely while perpetrating a robbery. Second, R. C. 2901.01 differs materially from R. C. 2907.30 in such a way as to clearly set forth a number of distinct statutory offenses. Although the unlawful acts enumerated in R. C. 2901.01 are joined by the disjunctive “or,” as are those in R. C. 2907.30, the acts
The court comes now to a consideration of the disposition of this appeal. The action of the trial court, in effect, found that the defense of double jeopardy was not a valid defense against any of the three counts in the indictment. The Court of Appeals affirmed. Appellant indicates in his brief that he is appealing only from that part of the Court of Appeals’ judgment which affirmed the trial court’s ruling on the first count of the indictment relating to the former charge of receiving stolen property for which he was tried and acquitted. However, appellant’s notice of appeal is directed to the entire judgment of the Court of Appeals.
Therefore, the judgment of the Court of Appeals is reversed in relation to its affirmance of that part of the trial court’s judgment relating to the first count of the indictment upon which appellant was previously tried and
The cause is remanded to the Court of Common Pleas for further proceedings in accordance with this opinion in respect to the second and third counts of the indictment.
Judgment reversed in part and affirmed in part.
Dissenting Opinion
dissenting. It seems plain to me that one might “receive,” but not “conceal,” stolen property. It is also plain that, while not having received stolen property, one might well have concealed it. E. g., the date upon which defendant allegedly concealed the stolen property was approximately two months after the date upon which it was stolen. Consequently, I would affirm.
