Jones v. Commonwealth, 240 S.E.2d 658 (Va. 1978). · Go Syfert
Jones v. Commonwealth, 240 S.E.2d 658 (Va. 1978). Cases Citing This Book View Copy Cite
Quick Summary

Grand larceny is a lesser-included offense of robbery only when it is the specific theft charged in the robbery indictment.

The defendant, armed with a pistol, robbed a motel clerk of money and keys, then drove away in the motel's courtesy car. He was convicted of robbery and, on a separate indictment, grand larceny of the automobile. The question presented is whether the grand larceny conviction violates double jeopardy protections or statutory bars against multiple prosecutions for the same act. The court applies the rule that grand larceny is a lesser-included offense of robbery only when it is the specific theft charged in the robbery indictment. Because the car theft was not charged in the robbery indictment and occurred at a different time and place, it constitutes a separate act. The court holds that the convictions do not offend constitutional or statutory double jeopardy provisions and affirms the judgments.

380 citation events (179 in the last 25 years) across 12 distinct courts.
Treatment trajectory · 1979 → 2026 · click a year to view as-of
1979 2002 2026
Cited for
240 S.E.2d at 661 Distinguishing separate acts from single offenses under larceny statute15 citing casestheft of money and theft of automobile - 3 - during motel robbery are distinct and separate offenses2 citing courts put it this way
  • Kashawna Jean Moore v. Commonwealth of Virginia, No. 0662171 (Va. Ct. App. May 1, 2018).unpublished
    Davis, 57 Va. App. at 458 , 703 S.E.2d at 265 . 3 Appellant does not argue that the two convictions violated the Fifth Amendment prohibition against double jeopardy. -3- Because the prohibition of Code § 19.2-294 “only ‘forbids multiple pr…
  • Rodney Lee Rodis v. Commonwealth of Virginia, No. 0162092 (Va. Ct. App. May 11, 2010).unpublished
    Furthermore, if the same act be a violation of both a state and a federal statute, a prosecution under the federal statute shall be a bar to a prosecution under the state statute. -2- The record reveals appellant was prosecuted under the f…
  • Jebrail Jefferson, s/k/a Jibrail Lamont Jefferson v. Commonwealth of Virginia, 597 S.E.2d 290 (Va. Ct. App. 2004).published
    However, unlike the Fifth Amendment prohibition against double jeopardy, which is dependent on “the identity of the *367 offense, and not the act,” Epps [v. Commonwealth], 216 Va. [150,] 153-54, 216 S.E.2d [64,] 68 [(1975)], the prohibitio…
  • Hudgins v. Commonwealth, 597 S.E.2d 221 (Va. Ct. App. 2004).published 18 cites
    I § 8. [3] These protections prevent prosecution under successive indictments "when (1) the two offenses involved are identical, (2) the former offense is lesser-included in the subsequent offense; and (3) the subsequent offense is lesser-…
  • Londono v. Commonwealth, 579 S.E.2d 641 (Va. Ct. App. 2003).published 2 cites
    However, unlike the Fifth Amendment prohibition against double jeopardy, which is dependent on “the identity of the offense, and not the act,” Epps, 216 Va. at 153-54 , 216 S.E.2d at 67 , the prohibition of Code § 19.2-294 “is dependent up…
  • Robert Henry Perkins s/k/a etc v. Commonwealth, No. 2944013 (Va. Ct. App. Nov. 12, 2002).unpublished
    (theft of money and theft of automobile - 3 - during motel robbery are distinct and separate offenses)
  • Hayes v. State, 803 So. 2d 695 (Fla. 2001).published 2 cites
    The court affirmed the defendant's multiple convictions, stating that the "[l]arceny of the car, located two hundred yards away from the scene of the first theft, and the act underlying that offense occurred at a different place at a later…
  • Lash v. Cnty. of Henrico, 421 S.E.2d 851 (Va. Ct. App. 1992).published 4 cites
    (larceny of an automobile in which to escape from robbery is not "same act" as robbery)
  • Commonwealth v. Spencer, 27 Va. Cir. 304 (Warren Cir. Ct. 1992).published
    “the rule applies only to a case involving multiple larceny prosecutions predicated upon the theft of multiple articles stolen contemporaneously”
  • Billington v. Commonwealth, 412 S.E.2d 461 (Va. Ct. App. 1991).published
    (theft of money and theft of automobile during a robbery of a motel)
Show 5 more citing cases
  • Darnell v. Commonwealth, 408 S.E.2d 540 (Va. Ct. App. 1991).published
    “the rule applies only to a case involving multiple larceny prosecutions predicated upon the theft of multiple articles stolen contemporaneously”
  • Fitzgerald v. Com., 401 S.E.2d 208 (Va. Ct. App. 1991).published 2 cites
    Cf. Jones v. Commonwealth, 218 Va. 757, 761 , 240 S.E.2d 658, 661 (1978).
  • Fitzgerald v. Commonwealth, 401 S.E.2d 208 (Va. Ct. App. 1991).published 3 cites
    Cf. Jones v. Commonwealth, 218 Va. 757, 761 , 240 S.E.2d 658, 661 (1978).
  • Johnson v. Commonwealth, 562 S.E.2d 341 (Va. Ct. App. 2002).published 2 cites
    See Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180, 182 , 76 L.Ed. 306 (1932). 1 Code § 19.2-294 provides:' *145 If the same act be a violation of two or more statutes, or of two or more ordinances, or of one or more statut…
  • Anthony Davon Slade v. Commonwealth of Virginia, No. 2664983 (Va. Ct. App. July 18, 2000).unpublished 2 cites
    "Code § 19.2-294 speaks to 'acts' of the accused, not elements of the offense." Wade v. Commonwealth, 9 Va. App. 359, 365 , 388 S.E.2d 277, 280 (1990); see also Jones v. Commonwealth, 218 Va. 757, 760 , 240 S.E.2d 658, 661 (1978). "[T]he t…
218 Va. at 761 “applies only to a case involving multiple larceny prosecutions predicated upon the theft of multiple articles stolen contemporaneously.”10 citing cases5 citing courts quote it
  • Evans v. Commonwealth, No. 190846 (Va. Dec. 3, 2020).published
    I believe we need look no further than the test we set out in Jones v. Commonwealth, 218 Va. 757, 761 (1978).
  • Lash v. Cnty. of Henrico, 421 S.E.2d 851 (Va. Ct. App. 1992).published 4 cites
    If the "same act" is a violation of two or more statutes, conviction under one of the statutes is "a bar to a prosecution or proceeding under the other." Code § 19.2-294. [2] This prohibition is dependent upon "the identity of the act." Jo…
  • Commonwealth v. Spencer, 27 Va. Cir. 304 (Warren Cir. Ct. 1992).published
    However, “the rule applies only to a case involving multiple larceny prosecutions predicated upon the theft of multiple articles stolen contemporaneously.” Jones v. Commonwealth, 218 Va. 757, 761 , 240 S.E.2d 658, 661 (1978), cert. denied,…
  • Darnell v. Commonwealth, 408 S.E.2d 540 (Va. Ct. App. 1991).published
    However, "the rule applies only to a case involving multiple larceny prosecutions predicated upon the theft of multiple articles stolen contemporaneously." Jones v. Commonwealth, 218 Va. 757, 761 , 240 S.E.2d 658, 661 (1978), cert. denied,…
  • Fitzgerald v. Com., 401 S.E.2d 208 (Va. Ct. App. 1991).published 2 cites
    Cf. Jones v. Commonwealth, 218 Va. 757, 761 , 240 S.E.2d 658, 661 (1978).
  • Fitzgerald v. Commonwealth, 401 S.E.2d 208 (Va. Ct. App. 1991).published 3 cites
    Cf. Jones v. Commonwealth, 218 Va. 757, 761 , 240 S.E.2d 658, 661 (1978).
  • Commonwealth v. Tarrant, 442 N.E.2d 31 (Mass. App. Ct. 1982).published
    See also Jones v. Commonwealth, 218 Va. 757, 761 (1978).
  • Stephens v. Commonwealth, 557 S.E.2d 227 (Va. 2002).published
  • Schwartz v. Commonwealth, 581 S.E.2d 891 (Va. Ct. App. 2003).published
  • Hines v. Commonwealth, 576 S.E.2d 781 (Va. Ct. App. 2003).published
240 S.E.2d at 660 Distinguishing between identical and separate offenses10 citing cases4 In affirming a robbery conviction, the Virginia Supreme Court found that the defendant’s “taking of the victim’s shirt and sweater, by violence and against his will, is in itself sufficient to constitute a robbery3 citing courts put it this way
  • Victoria Elizabeth Dufresne v. Commonwealth of Virginia, 791 S.E.2d 335 (Va. Ct. App. 2016).published
    (4 In affirming a robbery conviction, the Virginia Supreme Court found that the defendant’s “taking of the victim’s shirt and sweater, by violence and against his will, is in itself sufficient to constitute a robbery)
  • Victoria Elizabeth Dufresne v. Commonwealth of Virginia, No. 0281152 (Va. Ct. App. Mar. 22, 2016).unpublished
    (4 In affirming a robbery conviction, the Virginia Supreme Court found that the defendant’s “taking of the victim’s shirt and sweater, by violence and against his will, is in itself sufficient to constitute a robbery)
  • Victoria Elizabeth Dufresne v. Commonwealth of Virginia, No. 0281152 (Va. Ct. App. Feb. 9, 2016).unpublished
    (4 In affirming a robbery conviction, the Virginia Supreme Court found that the defendant’s “taking of the victim’s shirt and sweater, by violence and against his will, is in itself sufficient to constitute a robbery)
  • Bowden v. Commonwealth, 667 S.E.2d 27 (Va. Ct. App. 2008).published
    “Stated differently, an offense is not a lesser-included offense if it contains an element that the charged offense does not contain.” Dalton, 259 Va. at 253 , 524 S.E.2d at 862 (citing Jones v. Commonwealth, 218 Va. 757, 759 , 240 S.E.2d…
  • Hudgins v. Commonwealth, 597 S.E.2d 221 (Va. Ct. App. 2004).published 18 cites
    I § 8. [3] These protections prevent prosecution under successive indictments "when (1) the two offenses involved are identical, (2) the former offense is lesser-included in the subsequent offense; and (3) the subsequent offense is lesser-…
  • Hudgins v. Commonwealth, 577 S.E.2d 505 (Va. Ct. App. 2003).published 6 cites
    Jones v. Commonwealth, 218 Va. 757, 759 , 240 S.E.2d 658, 660 (1978).
  • Hayes v. State, 803 So. 2d 695 (Fla. 2001).published 2 cites
    The court affirmed the defendant's multiple convictions, stating that the "[l]arceny of the car, located two hundred yards away from the scene of the first theft, and the act underlying that offense occurred at a different place at a later…
  • Graves v. Commonwealth, 462 S.E.2d 902 (Va. Ct. App. 1995).published 12 cites
    Id. at 759-60, 240 S.E.2d at 660-61 (citations omitted).
  • Richard Donald Hegedus v. Commonwealth, No. 1759962 (Va. Ct. App. July 1, 1997).unpublished 2 cites
    Kauffman v. - 5 - Commonwealth, 8 Va. App. 400, 409 , 382 S.E.2d 279, 283 (1989); see also Jones v. Commonwealth, 218 Va. 757, 759 , 240 S.E.2d 658, 660 (1978) cert. denied, 439 U.S. 892 (1978).
  • Commonwealth v. Gilmore, 31 Va. Cir. 259 (Richmond County Cir. Ct. 1993).published 2 cites
    The larceny inside the station ... began and ended with the removal from the refrigerator of the money concealed therein.” Id. at 726, 273 S.E.2d at 782 ; see also, Jones v. Commonwealth, 218 Va. 757, 761 , 240 S.E.2d 658, 660 (1978) (robb…
240 S.E.2d at 759 cited at this page3 citing cases
  • Hudgins v. Commonwealth, 597 S.E.2d 221 (Va. Ct. App. 2004).published 18 cites
    I § 8. [3] These protections prevent prosecution under successive indictments "when (1) the two offenses involved are identical, (2) the former offense is lesser-included in the subsequent offense; and (3) the subsequent offense is lesser-…
  • Hudgins v. Commonwealth, 577 S.E.2d 505 (Va. Ct. App. 2003).published 6 cites
    Jones v. Commonwealth, 218 Va. 757, 759 , 240 S.E.2d 658, 660 (1978).
  • Graves v. Commonwealth, 462 S.E.2d 902 (Va. Ct. App. 1995).published 12 cites
    Id. at 759-60, 240 S.E.2d at 660-61 (citations omitted).
218 Va. at 759 “defendant does not contend that the two crimes of which he was convicted are identical offenses”1 citing case2 citing courts quote it
  • Commonwealth v. Djelebova, 48 Va. Cir. 45 (Charlottesville Cir. Ct. 1999).published 2 cites
    “that for the purposes of the double jeopardy clauses, grand larceny is a lesser-included offense of robbery only when it is the theft expressly charged in the robbery indictment”
Other citing cases7 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
Roderick Cecil Jones
v.
Commonwealth of Virginia
Record 770640.
Supreme Court of Virginia.
Jan 13, 1978.
Published opinion
240 S.E.2d 658
1978 Va. LEXIS 144
Oldric J. LaBell, Jr., for plaintiff in error., Vera S. Warthen, Assistant Attorney General (Anthony F. Troy, Attorney General, on brief), for defendant in error.
Poff.
Cited by 74 opinions  |  Published
Poff, J.,

delivered the opinion of the Court.

The principal question on appeal, raised below on a motion to dismiss, is whether defendant’s conviction of grand larceny of an automobile following his conviction of robbery involving larceny of money offended the constitutional guarantees against double jeopardy, U.S. CONST, amend. V; Va. CONST, art. I, § 8, or the provisions of Code § 19.2-294 (Repl. Vol. 1975).

It appears from the evidence (the sufficiency of which is not challenged) that Roderick Cecil Jones, armed with a pistol, entered the office of a Holiday Inn Motel and forced Alton Cole, the clerk in charge, to give him the money in the cash drawer and the keys to the Holiday Inn “courtesy car” which were hanging on a wall hook. Defendant required Cole to accompany him to the car, parked some two hundred yards from the office, and open the driver’s door. Defendant entered the car, laid the money and pistol on his lap, and drove away.

Upon defendant’s plea of not guilty and waiver of trial by jury, the trial court convicted him of robbing Cole of the money in violation of Code § 18.2-58 (Repl. Vol. 1975) and, by order entered January 14, 1977, sentenced him to 31 years in the penitentiary. Upon a separate indictment, the trial court convicted defendant of grand larceny of the automobile in violation of Code § 18.2-95 (Repl. Vol. 1975). By final order entered on that indictment on January 14, 1977, defendant was sentenced to four years in the penitentiary, the sentence to run concurrently with that imposed on the armed robbery conviction. [1]

[*759] The fact that the grand larceny penalty was made to run concurrently with the robbery penalty does not defeat defendant’s constitutional claim; the double jeopardy clauses forbid not only subsequent punishment but subsequent prosecution. North Carolina v. Pearce, 395 U.S. 711, 717 (1969). Those clauses apply not only when the two offenses are identical, but also when the former offense is lesser-included in the subsequent offense. Rouzie and Boudreau v. Commonwealth, 215 Va. 174, 176, 207 S.E.2d 854, 856 (1974); accord, Epps v. Commonwealth, 216 Va. 150, 153, 216 S.E.2d 64, 67 (1975); Jones v. Commonwealth, 218 Va. 18, 20, 235 S.E.2d 313, 314 (1977). The guarantees also apply when the subsequent offense is lesser-included in the former offense, In re Nielsen, 131 U.S. 176 (1889) (illegal cohabitation and adultery); accord, Brown v. Ohio, 432 U.S. 161 (1977) (auto theft and joy riding).

Defendant does not contend that the two crimes of which he was convicted are identical offenses. His constitutional claim is based upon his argument that, generically, grand larceny is a lesser-included offense of robbery. We believe that, for purposes of the double jeopardy clauses, grand larceny is a lesser-included offense of robbery only when it is the theft expressly charged in the robbery indictment.

One offense is not lesser-included within another unless all of its elements are included in the other. See Ashby v. Commonwealth, 208 Va. 443, 446, 158 S.E.2d 657, 659 (1968), cert. denied, 393 U.S. 1111 (1969). Said differently, one offense is not lesser-included within another if it contains an element the other does not.

“If all of the elements of a given offense are to be found in another offense, the former is necessarily included in the latter. Before a lesser offense can be said to constitute a necessary part of a greater offense, all the legal ingredients of the corpus delicti of the lesser offense must be included in the elements of the greater offense; so, if an element necessary to establish the corpus delicti of the lesser offense is irrelevant to the proof of the greater offense, the lesser cannot be held to be a necessarily included offense, (footnotes and assembled cases omitted).” 22 C.J.S. Criminal Law § 283(a) (1961).

Definitionally, theft is an essential component of robbery and charged as such in every robbery indictment. Manifestly, a[*760] robbery indictment includes all elements of whatever larceny offense it charges, whether grand or petit, and the larceny offense charged is, therefore, lesser-included in robbery. [2] Here, grand larceny of the car was not charged in the robbery indictment. Since one of the essential elements of that larceny offense was the value of the car, Code § 18.2-95, and that element is not an essential element of robbery, Pierce v. Commonwealth, 205 Va. 528, 532, 138 S.E.2d 28, 31 (1964), we hold that the crime of larceny of which defendant was convicted was not lesser-included in the crime of robbery of which he was convicted.

Aside from his constitutional claim, defendant invokes Code § 19.2-294 which reads, in part, as follows:

“If the same act be a violation of two or more statutes, . . . conviction under one of such statutes . . . shall be a bar to a prosecution or proceeding under the other or others.”

Defendant contends that the theft of the money underlying the robbery conviction and the theft of the car underlying the grand larceny conviction constituted indivisible parts of “the same act” within the mandate of the statute. Citing Blockburger v. United States, 284 U.S. 299 (1932), the Commonwealth argues that, even if it be assumed “that these were but one act”, the statute does not apply because the two thefts constituted two different offenses. The Blockburger court held:

“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id. at 304.

And in Miles v. Commonwealth, 205 Va. 462, 467, 138 S.E.2d 22, 27 (1964), we said that “[i]t is the identity of the offense which is referred to in the constitutional guarantee against double jeopardy.” But the rule in Blockburger and that in Miles were addressed to the constitutional guarantee; what the statute before us refers to is the identity of the act. Thus, if the offenses are different and one is not lesser-included in the other, the[*761] constitutional guarantee does not apply. Jones v. Commonwealth, supra. If the acts are different, the statutory mandate does not apply. Epps v. Commonwealth, supra.

In support of his statutory claim, defendant relies upon the rule quoted in Holly's Case, 113 Va. 769, 772, 75 S.E. 88, 89 (1912):

“ ‘The theft of several articles at one and the same time constitutes an indivisible offense, and a conviction or acquittal of any one or more of them is a bar to a subsequent prosecution for the larceny of the others.’ ”

In two respects, that rule is inapplicable here.

First, the rulé applies only to a case involving multiple larceny prosecutions predicated upon the theft of multiple articles stolen contemporaneously. Defendant was prosecuted for only one larceny offense. [3]

Second, while multiple articles were stolen, they were not stolen “at one and the same time”. Larceny of the money was complete and the act underlying that offense ended the moment the money was taken and carried away. Larceny of the car, located two hundred yards from the scene of the first theft, and the act underlying that offense occurred at a different place at a later point in time. True, the two thefts involved property of the same owner and were committed by the same criminal agent during a continuing course of intimidation of the same victim; in those respects, the two acts are similar. But, like the statutory rule, the rule in Holly's Case forbids multiple prosecution of offenses springing from the same criminal act. Here, in terms of time and situs, the two thefts involved two separate and distinct acts of caption and two different acts of asportation.

We hold, therefore, that the acts which constituted the two offenses of which defendant was convicted were not “the same act” within the meaning of Code § 19.2-294.

Defendant also raises two evidentiary questions, one alleging a variance between the grand larceny indictment and the proof of ownership of the car and the other challenging the admis[*762] sibility of lay testimony concerning the value of the car. Finding no reversible error on either issue, we affirm the two judgments to which the writ was addressed.

Affirmed.

1

Although we awarded a writ of error addressed to both judgment orders, the writ was “limited to the consideration of the question of grand larceny of auto.”

2

See Bazemore v. Commonwealth, 210 Va. 351, 353, 170 S.E.2d 774, 776 (1969); Blowe v. Peyton, 208 Va. 68, 75, 155 S.E.2d 351, 357 (1967).

3

If defendant had been convicted of larceny of the money, the rule in Holly’s Case would bar a subsequent prosecution for larceny of the car (assuming both articles were stolen contemporaneously).