Jones v. Green ( 1965 )

Per Curiam.

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 remcmded to custody.

Taft, C. J., ZimmermaN, Matthias, O’Neill, Herbert, Schneider and BrowN, JJ., concur.