People v. Bentley

Foote, C. The defendant was tried and convicted of an attempt to commit robbery. From the judgment given in the premises, and an order refusing a new trial, he appeals. He contends that he has been formerly convicted of the same offense, which is alleged to be a bar to this prosecution. It was attempted in his behalf to introduce evidence to show that such was the fact, but it was ruled out by the trial court, and exception taken. The evidence offered tended to show that he had been convicted of an assault with a deadly weapon, under an information charging an assault with intent to commit murder. It is plain that the defendant had not formerly been convicted of an offense for which he could have been or was tried and convicted on the information charging the offense of which he here stands convicted. “It is believed that no well-considered case can be found where a putting in jeopardy for one act,” or a conviction for one act, “was held to bar a prosecution for another separate and distinct one, merely because they were so closely connected in point of time that it was impossible to separate the evidence relating to them.” (Teat v. State, 53 Miss. 456; 24 Am. Rep. 708.) According to the testimony in this ease, the first thing done by the defendant and his confederate was an attempt to intimidate and rob; the next was to attack with a deadly weapon. It cannot be the law that a man having assaulted another with a deadly weapon, and having also attempted before that to rob him, can escape punishment for the attempt to rob because of conviction for assault with a deadly weapon. °If the offenses do not possess the same elements, although both relate to the same transaction, it would seem that both may be punished. This view of the law seems to have been taken by the supreme court of this state in [9]the case of People v. Majors, 65 Cal. 138, where many authorities bearing upon the matter in hand are cited and discussed. The offense of which the defendant was first convicted was an effort to injure the person of the prosecutor with a deadly weapon; that of which he was last convicted was an attempt to take away the goods of the prosecutor from his person by intimidation or violence. The essential elements of the two offenses are not the same.

The admissibility of the evidence of Moore, a witness for the prosecution, to prove a conspiracy to commit a felony, which was objected to by the defendant, but allowed by the court to go to the jury, has been determined heretofore against the defendant’s contention in the case of People v. Bentley, 75 Cal. 407, where the facts surrounding the transaction are fully stated.