Opinion
No. 39358
Decided June 23, 1965.
Habeas corpus — Court's power to refer original actions to master commissioners — Single act may constitute separate offenses — Plea of double jeopardy — Issues not cognizable in habeas corpus.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court. On February 18, 1960, the Grand Jury of Cuyahoga County returned an indictment charging petitioner, Charles Daniel Jones, with one count of armed robbery and one count of carrying a concealed weapon. Counsel was appointed to represent petitioner, a trial by jury was waived and petitioner was tried and found guilty on both counts by the court.
Mr. Charles Daniel Jones, in propria persona. Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for respondent.
At the outset of his hearing, petitioner declined to be heard by the master commissioners. He had previously filed a declination and at his hearing stood on this motion and refused to present the merits of his case. It is his contention that the master commissioners are not a duly constituted body and have no authority to conduct these hearings, and that he is entitled to present his arguments to the court itself. These questions were raised and fully determined contrary to petitioner's position in McCann v. Maxwell, Warden, 174 Ohio St. 282.
Therefore, we considered this case on the petition and briefs of the parties. Gallagher v. Maxwell, Warden, 175 Ohio St. 440.
In this action, petitioner contends that he is being held illegally because he was found guilty of both armed robbery and carrying a concealed weapon. It is his argument that inasmuch as the gun was an essential element in proving the armed robbery he could not be subjected to a second charge of carrying a concealed weapon based on the same gun that was necessary to prove that it was armed robbery. In other words, petitioner is urging double jeopardy.
Petitioner was apprehended shortly after the holdup by an eyewitness victim of the robbery who held him until the police arrived. When the police arrived, they arrested petitioner and searched him, and it was during this search that the gun was discovered.
Petitioner was convicted of two separate and distinct offenses. The fact that the gun was used in the robbery and was an essential element in establishing the crime did not make him any less guilty of the crime of carrying a concealed weapon. Petitioner was not arrested during the perpetration of the robbery itself but after it had terminated. This was not two crimes which arose from the same occurrence.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.