State v. Elliott

488 P.2d 1189, 6 Or. App. 436, 1971 Ore. App. LEXIS 727

Opinions

LANGTRY, J.

The defendant had been convicted of driving under the influence of intoxicating liquor. The sole question presented by this appeal is whether he would be put in jeopardy a second time for the “same of- fence” in violation of the Fifth Amendment

Footnotes

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① if subjected to a prosecution for negligent homicide based upon the same act of driving a motor vehicle. The circuit court allowed defendant’s plea of former conviction and dismissed the negligent homicide indictment. The state appeals pursuant to ORS 138.060 (2).

Various tests have been devised for defining the term “same offence” in the double jeopardy context. In State v. Miller, 5 Or App 501, 484 P2d 1132, Sup Ct review denied (1971), we noted two basic approaches: the “same evidence” test and the “same transaction” test. We consider only the “same evidence” test here.② That test is:

“ ‘ “* * * A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal, or conviction, under either statute, does not exempt the defendant from prosecution and punishment under the other.” * * *’

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“ ‘Thus, to constitute a valid plea of former jeopardy, two distinct factors at least must be shown to concur — the same act and the same statutory offense.’ * * *” 5 Or App at 503.

Clearly, the case at bar fails to meet this standard.③ There is another aspect of double jeopardy, not at issue in Miller or decided in any other Oregon ease, that warrants consideration.

Defendant argues that the double jeopardy guarantee prohibits his prosecution for negligent homicide because the offense of driving under the influence of intoxicating liquor, of which he has already been convicted, is included within the negligent homicide indictment. Since a defendant may be found guilty of any crime the commission of which is necessarily included in the one charged in the indictment,④ defendant contends that a prosecution for negligent homicide would place him in jeopardy a second time for the “same offence.”

The principle that conviction for a minor offense may bar prosecution for a greater offense is generally recognized. 1 Wharton, Criminal Law and Procedure 358, § 147 (Anderson 1957). However, this principle, and defendant’s reasoning, is premised on the assumption that the lesser offense is a “constituent part” of the greater: a “necessarily included offense.” The ultimate question before us, then, is whether drunk driving constitutes a “necessarily included offense” of negligent homicide so as to render prosecution for the latter constitutionally offensive. To resolve this issue we will employ only the general framework of the “same evidence” test enunciated in Miller.

Courts have taken three different approaches to the “same evidence” test. See Note, Twice in Jeopardy, 75 Yale L J 262, 269-70 (1965):

“Required evidence tests hold that offenses are The same’ if the elements of one are sufficiently similar to the elements of another. Alleged evidence tests find offenses the same if there is sufficient similarity between the allegations of the two indictments. Actual evidence tests find the offenses the same if there is a similarity between the evidence presented at the two trials. * * *”

The majority of jurisdictions follow the “required evidence” approach. 75 Yale L J at 269, n 31. To our knowledge, Oregon courts have done the same, as is implicit in the analysis in Miller and other double jeopardy cases. Using this approach, the definition for a “necessarily included offense” would be: “where an offense cannot be committed without necessarily committing another, the other offense is a necessarily included offense.” People v. McCree, 128 Cal App2d 196, 275 P2d 95 (1954); see, 21 Am Jur 2d 243, § 189 (1965). Clearly, drunk driving would not pass muster under the “required evidence” approach since conviction of negligent homicide would not necessitate a finding of driving while intoxicated. Most jurisdictions have so concluded under similar facts. See, Annotation, 172 ALR 1053 (1948), and supplementary cases.

Defendant apparently would have us adopt the “alleged evidence” approach, for he distinguishes his case from the line of authority holding no double jeopardy on the basis of an allegation in the indictment. The pertinent parts of that indictment are:

“The said LARRY JAMES ELLIOTT * * * did then and there drive a motor vehicle in a grossly negligent manner, as a proximate result of which * * * a person died, as follows:

“On said date, LARRY JAMES ELLIOTT, while under the influence of intoxicating liquor as defined by ORS 483.992 (2), drove * * * said automobile in a negligent manner in that he:

“1. Drove said vehicle at a speed greater than was reasonable and prudent * * *;

“2. Failed to maintain proper control over his vehicle;

“3. Failed to maintain proper lookout; “as a result of which driving said vehicle struck a vehicle being driven by Lena M. Westervelt, a female person, causing said person, on December 20, 1969, to die * * (Emphasis supplied.)

As the italicized portion of the indictment indicates, an opposite conclusion to that reached by the required evidence approach would result if “alleged evidence” were compared: namely, that drunk driving is a “necessarily included offense.” However, we hesitate to ground our decision on so narrow and tenuous a basis as the inclusion of a superfluous, evidentiary allegation.⑤

The “actual evidence” test is generally a sounder alternative to the “required evidence” test.⑥ Here it would yield the same result as the “alleged evidence” test since the evidence introduced at trial to support the intoxication allegation, and tend to prove gross negligence, would, also, support a conviction for driving while intoxicated. Moreover, the same would hold true for any person in defendant’s situation, regardless of the skill of the prosecutor in drawing up the indictment. Whether or not we adopt the test depends on the support we find for it.

There is general authority supporting the use of the “actual evidence” test for determining what is an included offense. See, for example, Hans Nielsen, Petitioner, 131 US 176, 9 S Ct 672, 33 L Ed 118 (1889), and The State v. Cooper, 13 NJL 361, 25 Am Dec 490 (1833), cited therein. But in decisions dealing specifically with offenses involving automobiles, i.e., conviction for driving while intoxicated (and other related offenses, such as recldess driving) followed by a prosecution for negligent homicide or manslaughter, research indicates that no court has used the “actual evidence” test to resolve the issue of whether the former is “necessarily included” in the latter. The unanimous conclusion⑦ (presumably, by virtue of the “required evidence” test) is that separate offenses are involved and, accordingly, jeopardy as to one does not bar prosecution of the other. 1 Wharton, Criminal Law and Procedure 375, § 152 (Anderson 1957); Annotation, 172 ALR, 1053 (1948), and supplementary cases.

Cases cited by defendant offer little authority to the contrary. The court in State v. Anderson, 82 Idaho 293, 352 P2d 972 (1960), acknowledged its deviation from the norm in holding that driving while intoxicated was a “necessarily included offense” of negligent homicide. 82 Idaho at 301. Moreover, double jeopardy was not at issue in that case.

Matter of Martinis v. Supreme Court, 15 NY2d , 258 NYS2d 65, 206 NE2d 165 (1965), did deal with a double jeopardy question similar to that in the case at bar. Martinis’s automobile collided with another in which five people were killed. He was promptly tried and found not guilty of drunk and reckless driving charges. Thereafter, a grand jury indicted him for criminal negligence. Martinis sought to quash the indictment on the grounds that “reckless driving” was a common ingredient of the misdemeanor charge (of which he had been acquitted), and the felony charge of criminal negligence. The indictment alleged only the statutory elements.⑧

The appellate court reversed the lower court’s order which prohibited the state from indicting. Three justices felt that the “required evidence” test did not bar a homicide prosecution. The dissenting three felt the same test prohibited the indictment. The seventh, Mr. Justice Burke, whose opinion is heavily quoted in defendant’s brief, felt that the second trial should proceed but that the “actual evidence” test should be applied to the evidence presented at that trial to see if it would be sufficient to convict of the first charge, reckless driving. The lack of support for the “actual evidence” test by the majority of that court and the peculiar statutory scheme in New York dissuade us from following this singular view, especially in light of the strong majority position noted in other states.

As we initially stated, the constitutional guarantee is against double jeopardy for the same offense.

“* *= * There is no constitutional guarantee against a repetition of evidence in trials for dif ferent offenses. * * *” United States v. Brimsdon, 23 F Supp 510, 512 (WD Mo 1938).

The offenses of drank driving and negligent homicide are not so identical as to satisfy the traditional concept of double jeopardy.

Driving while intoxicated is a misdemeanor, a creature of the legislature, unknown at common law. Like other vehicle-related offenses, it is contained in the framework of the Motor Vehicle Code, ORS ch 483, the general purpose of which is the regulation and maintenance of free and safe movement over public highways. No attempt is made by these provisions, including that for drunk driving, to punish for any consequences which may flow from their violation.

The killing of a human being, on the other hand, has always been a serious crime, however perpetrated. Negligent homicide is classified as such in ORS ch 163. As is the case with other homicide statutes, negligent homicide cannot be tried in the lesser courts; the same is not true for drunk driving. ORS 484.030. The essential ingredient of unlawful homicide is the taking of a human life. Thus, the gravamen of negligent homicide is different than drunk driving.⑨

We find no reason to depart from the “required evidence” position taken by other states in similar cases and heretofore, generally followed in Oregon. Accordingly, no double jeopardy would attach by virtue of defendant’s prosecution for negligent homicide.

Reversed and remanded.

“* * * [N]or shall any person be subject for the same of-fence to be twice put in jeopardy of life or limb * * U. S. Const. amend. V.

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Examples of situations in which the “same transaction” test was considered appropriate are: State v. Clipston, 3 Or App 313, 473 P2d 682 (1970); State of Oregon v. McCormack, 8 Or 236 (1880).

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Conviction of negligent homicide requires proof of an “additional fact” not required for drunk driving, namely, a negligent act causing death.

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ORS 136.660.

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In State v. Montieth, 247 Or 43, 417 P2d 1012 (1966), appeal dismissed, 386 US 780, 87 S Ct 1496, 18 L Ed 2d 526 (1967), intoxication was said to be evidence of gross negligence in a negligent homicide prosecution when accompanied by proof of an act of ordinary negligence.

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In commenting on the “alleged evidence” test, the author of the Note states:

“This test falls somewhere between the required and actual evidence tests. If the allegations are examined with a view to the essential facts it is much like the elements [required evidence] test. If, on the other hand, the evidential allegations are considered, it begins to resemble more the actual evidence test. [Emphasis supplied.] That is, it bars or permits a second prosecution on the basis of the anticipated actual evidence. The evidentiary factual allegations formulation has been criticized because it makes the issue of double jeopardy turn upon the ‘accidental inclusion of superfluous allegations.’ * * *” 75 Yale L J 269, 270 n 32 (1965).

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The Supreme Court of New York did apply the “actual evidence” test in People v. Martinis, 46 Misc2d 1066, 261 NYS2d 642 (1965), though, as will he seen, infra, the Court of Appeals appeared to opt for the “required evidence” test. Being the superior court, the Court of Appeals’ decision had greater weight for purposes of precedent.

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The statute proscribed the operation of “* * * any vehicle * * * in a reckless or culpably negligent manner, whereby a human being is killed * * New York Penal Law of 1909, § 1053-a.

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We recognize that a principal reason for the attempt to remove drunken drivers from the highways is the prevention of death to others.