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While the law jealously protects a culprit from double punishment, it does not allow him to commit two separate and distinct offenses for the price of one merely because they have some minor common element.
Defendant James Ronald Higgins was originally charged solely with the crime of robbery. There was some evidence at the trial, which if believed, showed that the victim was choked and pummeled by defendant during the robbery. The trial court instructed the jury on the range of charges that it could convict defendant of, and the jury found defendant guilty of assault by means of force likely to produce great bodily injury. Defendant made no objection to the entry of the verdict, nor did he appeal from it. Subsequently, defendant's motion for a new trial was granted, and an amended information was filed charging him with robbery and assault. The trial court sustained defendant's objections to the robbery charge but overruled it as to the assault charge. Defendant filed a writ of prohibition claiming that he was being placed in double jeopardy.
Could the defendant be tried for the crime of assault without violating the prohibition against double jeopardy?
The court denied the writ the prohibition. The court held that defendant could be tried for the crime of assault without violating the prohibition against double jeopardy. The fact that defendant was not found guilty of robbery did not establish that he had been in jeopardy for the crime of assault. The elements of assault were distinct from robbery.