Jeppesen v. State

Decision Date02 November 1951
Docket NumberNo. 33021,33021
PartiesJEPPESEN v. STATE.
CourtNebraska Supreme Court

Syllabus by the Court

1. A distinction obtains between an offense and the unlawful act out of which it arises, it being possible that two or more distinct offenses may grow out of the same transaction or act, and the rule that a person cannot be twice put in jeopardy for the same offense has no application where two separate and distinct crimes are committed by one and the same act, as the constitutional inhibition is directed to the identity of the offense and not to the act.

2. To justify a conviction on circumstantial evidence, it is necessary that the facts and circumstances essential to the conclusion sought must be proved by competent evidence beyond a reasonable doubt, and, when taken together must be of such a character as to be consistent with each other and with the hypothesis sought to be established thereby and inconsistent with any reasonable hypothesis of innocence.

3. In such a case, any fact or circumstance reasonably susceptible of two interpretations must be resolved most favorably to the accused.

Robert H. Downing, Superior Leon A. Sprague, Red Cloud, for plaintiff in error.

Clarence S. Beck, Atty. Gen., Dean G. Kratz, Asst. Atty. Gen., for defendant in error.

Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

MESSMORE, Justice.

The plaintiff in error Delbert Jeppesen, hereinafter referred to as defendant, was found guilty of manslaughter in the district court for Nuckolls County, Nebraska. He was sentenced to the Nebraska State Penitentiary, and prosecutes error to this court.

This prosecution is the outcome of a tragedy that occurred at midnight or early in the morning of October 7, 1948, and was due to an automobile collision or accident between an automobile driven by the defendant and an automobile driven by Lydia Lipker with her sister Della Tordrup as a passenger. As a result of the collision both Lydia Lipker and Della Tordrup were killed. Thereafter the defendant was charged in two separate informations identical in form with the exception of the name of the person killed, under section 28-403, R.R.S.1943, referred to as the manslaughter statute, which reads as follows: 'Whoever shall unlawfully kill another without malice, either upon a sudden quarrel, or unintentionally, while the slayer is in the commission of some unlawful act, shall be deemed guilty of manslaughter; * * *.'

This appeal involves the conviction of the defendant of the crime of manslaughter for the death of Della Tordrup. The defendant, by leave of court, was granted the right to withdraw his plea of not guilty for the purpose of pleading in bar to the information.

It was stipulated between the State and defendant that the defendant, who was charged with the unlawful killing and slaying of Della Tordrup on or about October 6, 1948, was the same person who was theretofore tried in the district court for Nuckolls County for the unlawful killing and slaying of Lydia Lipker on or about the same date, and who was acquitted of the charge of killing Lydia Lipker on September 28, 1949; that the acts and omissions of the defendant relied upon by the State in the prosecution for the unlawful killing of Lydia Lipker were the same acts and omissions of the defendant which were relied upon by the State in the prosecution for the unlawful killing of Della Tordrup.

The following facts appear from the record: Two informations for manslaughter were filed against the defendant. The charging part of each was the same, with the exception of the names of the persons killed. Both of the deaths resulted from the same automobile collision or accident. The defendant was found not guilty on the information charging him with killing Lydia Lipker. The trial court overruled the plea in bar.

It is contended by the defendant that inasmuch as the one accident produced the death of two persons and the same evidence with the exception of the name of the person killed would of necessity be relied upon in the prosecution of the defendant in both cases, and as no criminal intent is involved, the acquittal in one case is a bar to the prosecution of the other information. This court has not passed upon this precise question.

Introductory to our consideration of the subject, we set forth here for convenient reference later, certain constitutional provisions.

The Fifth Amendment to the Constitution of the United States provides: '* * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; * * *.'

Article I, section 12, Bill of Rights of the Constitution of the State of Nebraska as amended and in force at the present time provides: 'No person shall be compelled, in any criminal case, to give evidence against himself, or be twice put in jeopardy for the same offense.'

The plea of former jeopardy is an established maxim of the common law, and has been included in the Constitution of the United States as well as ours. The protection afforded is not against the peril of second punishment, but against being tried again for the same offense.

In Warren v. State, 79 Neb. 526, 113 N.W. 143, the acquittal of the defendant upon the charge of murder of one Lausten was held not to be a bar to a prosecution for the crime of robbery of Lausten committed at or about the time of the killing. This court said: 'When a plea of former jeopardy is made by reason of autrefois acquit, the test to determine the identity of the two offenses is whether the evidence necessary to convict in the second case was admissible under the former charge, * * *. If such a condition is shown to exist, the former acquittal is a bar to the second prosecution, but otherwise it will not operate to prevent prosecution upon another charge, even though based upon acts closely related in point of time.' The case is cited solely to disclose the test applying to double jeopardy as it appears in this state, and its application to the case at bar as will subsequently appear.

The defendant contends that the requirements of the test so laid down in the above-cited case were met by him for the reason the charges are identical and the evidence necessary for a conviction in the former case was identical and might be sufficient to warrant a conviction in the instant case.

In the annotation appearing in 172 A.L.R. 1062, applying the rule against double jeopardy to offenses involving the operation of automobiles it is said: 'Though the courts recognize that a single act may constitute two or more distinct and separate offenses and a person charged therewith may be punished for all of them, they are not always in accord as to what constitutes distinct and separate offenses arising from a single act. Thus, there is a conflict on the question of how many offenses are committed where two or more persons are injured or killed by a single criminal act in the operation of a motor vehicle. The majority of courts hold that there are as many separate and distinct offenses as there are persons injured or killed by the unlawful act so that successive prosecutions may be instituted against the person who committed the unlawful act without violating the rule against double jeopardy.'

Therefore, a prosecution founded upon the same transaction, act, or omission with regard to which a prosecution has already been had, is not necessarily a bar where two offenses may have been committed.

Our statute in defining manslaughter is the enactment of the common-law manslaughter, and under the common law it is the unlawful killing and not the means which brought about the killing that constitutes the offense. It is the identity of the offense, and not of the act, which is referred to in the constitutional guarantee against putting a person twice in jeopardy. When two or more persons are killed, though it be by a single act, yet, since the consequences affect, separately, each person killed, there is a corresponding number of offenses.

In the instant case the same act caused the death of two different persons. Obviously the proof of death of Lydia Lipker cannot possibly convict or acquit defendant of the killing of Della Tordrup. The only thing determined by the prior adjudication is that as to Lydia Lipker's death, the defendant's misconduct or negligence, if such existed, was insufficient to fasten the guilt upon him.

Neither in the Constitution of the United States nor in the Constitution of Nebraska is there any prohibition against successive prosecutions if the wrongful act is the cause of separate and distinct offenses. See State v. Fredlund, 200 Minn. 44, 273 N.W. 353, 113 A.L.R. 215, a case very similar to the case at bar, the exception being that indictments were brought under the third degree murder statute, which we deem of no particular significance as a distinction. We cite the case for the principle of law announced therein on the issue of double jeopardy. See, also, People v. Brannon, 70 Cal.App. 225, 233 P. 88; People v. Majoris, 65 Cal. 138, 3 P. 597, 52 Am.Rep. 295, to the same effect.

In People v. Allen, 368 Ill. 368, 14 N.E.2d 397, it was held that a distinction obtains between an offense and the unlawful act out of which it arises. The act is the cause of the offense which, conversely, is the result of the act. The constitutional inhibition is directed to the identity of the offense and not the act. Where a single felonious act results in the commission of two or more crimes not embraced in different degrees of the same offense, there is but a single physical act, the collision, from which two persons met their deaths. See, also, Fleming v. Commonwealth, 284 Ky. 209, 144 S.W.2d 220; Commonwealth v. Maguire, 313 Mass. 669, 48 N.E.2d 665.

In State v. Taylor, 185 Wash. 198, 52 P.2d 1252, it was held that: 'Where defendant, accused of manslaughter in five counts, was found guilty on three counts of...

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