Boyle v. State
| Decision Date | 19 April 1961 |
| Docket Number | No. 29782,29782 |
| Citation | 173 N.E.2d 747,241 Ind. 565 |
| Parties | Paul P. BOYLE, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
On rehearing.
For prior opinion see 170 N.E,.2d 802.
Paul B. Boyle, Sullivan, Roy A. Pope, B. Howard Caughran, Indianapolis, for appellant.
Edwin K. Steers, Atty. Gen., Indianapolis, for appellee.
Appellant has filed a petition for rehearing in which he cites certain inaccuracies in the recital of facts stated in my previous opinion. Accordingly the opinion is withdrawn and the following opinion is now submitted.
In this case the appellant was charged and convicted in Sullivan County with operating a motor vehicle on a public highway in that county while under the influence of intoxicating liquor. Acts 1939, ch. 48, § 52, p. 289 (being § 47-2001(b), Burns' 1952 Repl.). To this charge appellant filed a plea of double jeopardy. Appellant bases his appeal on an adverse ruling to this plea.
As grounds for his plea, appellant asserts that he had previously been tried and found not guilty of the same offense in Vigo County. Specifically appellant asserts that the offense with which he is now charged was a single and continuing offense, based upon the same evidence, for which he had previously been placed in jeopardy.
I concur with other members of the court upon the proposition that under our statute as presently written the continuous operation of a motor vehicle in two or more counties while under the influence of intoxicating liquor constitutes a single offense, subject to the rule of double jeopardy, and that the venue of the action may be placed in any county in which the alleged unlawful act occurs.
However, in my opinion, the acceptance of the above proposition of law does not, under the facts here presented, require a reversal of the ruling of the trial court.
The question which this court must determine is whether, under the facts before us, the offense of operating a motor vehicle in Sullivan county, with which appellant is presently charged, was a continuation of the same offense with which he was charged, tried and found not guilty in Vigo County. In determining this question, it must be recognized that the mere continuous operation of the automobile in both Vigo and Sullivan counties did not constitute a criminal offense. The offense was made a crime against the state because of the intoxication of the driver at the time and place or places of such operation.
As heretofore stated, in the prior action appellant was charged with operating a motor vehicle while under the influence of intoxicating liquor in Vigo county. In that case (as in this) there was evidence that appellant had drunk a small amount of liquor at his office in Terre Haute before driving to this home in Sullivan and there was evidence that he was intoxicated upon reaching Sullivan approximately one hour thereafter. However, there was no evidence that appellant was under the influence of intoxicating liquor while in Vigo county to such a degree that it would in anywise affect the operation of his motor vehicle. Consequently, there was no evidence in support of either the theory or the fact of a continuous unlawful operation of the automobile in both Vigo and Sullivan counties, as is here contended by appellant.
The rule which the courts of this state have followed and by which we are governed here was stated in Durke v. State, 1932, 204 Ind. 370, 378, 183 N.E. 97, 100, as follows:
"* * * 'identity of offense' test, which is that the second charge must be for the same identical act and crime as that charged by the first affidavit or indictment upon which defendant had been placed in jeopardy. * * * or stated another way: 'Would the same evidence be necessary to secure a conviction in the pending, as in the former prosecution.' * * *"
In further explanation of the test this court, in the case of State v. Reed, 1907, 168 Ind. 588, 590-591, 81 N.E. 571, 572, stated:
...
To continue reading
Request your trial