State v. Bacom
| Decision Date | 03 June 1947 |
| Parties | STATE v. BACOM. |
| Court | Florida Supreme Court |
Rehearing Denied June 23, 1947.
Appeal from Criminal Court of Record, Dade County; Ben C Willard, judge.
J. Tom Watson, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen Robert R. Taylor, County Sol., and Emmett W. Kehoe, Asst County Sol., both of Miami, for appellant.
Robert H. Givens, Jr., of Miami, for appellee.
The appellee pleaded guilty and was sentenced under an information of which one count charged him with reckless driving of an automobile, under Section 317.21 of F.S. 1941, F.S.A., and the other count with operating a motor vehicle while under the influence of intoxicating liquor, under Section 317.20 F.S. 1941, F.S.A. Thereafter he was charged with manslaughter, under Section 782.07, F.S. 1941, F.S.A. (distinct from Section 860.01, F.S. 1941, F.S.A. which denounces death by operation of motor vehicle while intoxicated), in that he committed a homicide through his culpably negligent operation of an automobile. A defense thereto of autrefois convict was upheld and the information quashed.
The order quashing the information was upon the theory that, the appellant having been convicted of the offenses mentioned, the subsequent prosecution for manslaughter put him in second jeopardy. The State has appealed, contending there was no second jeopardy, for the reason that there was no identity of offenses.
The essentials necessary to constitute a good plea of former jeopardy are succinctly stated in the case of King v. State, 145 Fla. 286, 199 So. 38, quoting from page 40, as follows: 'The essentials to sustain a plea of former jeopardy are: (1) that there was a former prosecution in the same State for the same offense; (2) that the same person was in jeopardy on the first prosecution; (3) that the parties are identical in the same prosecution; (4) that the particular offense on the prosecution of which the jeopardy attached was such an offense as to constitute a bar.'
In the King case, King was charged as an accessory to burning a house with intent to injure the insurer. He interposed plea of former jeopardy, that he had previously been acquitted on a charge of being an accessory to burning the same house. This Court held the plea bad and, quoting from 145 Fla. 286, 199 So. at page 40, said:
'* * * Has the defendant been placed in second jeopardy for the identical act or crime and is this shown by the plea of autrefois acquit? The answer to this question is the identity of the second offense or whether or not the evidence necessary to convict in the second case was admissible under the first offense; that the testimony relates to the same charge and that it warranted a conviction on the first offense. See Wharton's Criminal Evidence, 11th Ed., Vol. 2, pages 1483, 1484, par. 860.
'Material allegations of the two counts of the information under which plaintiff in error was convicted are: 'said building being then and there insured against loss or damage by fire by The American Insurance Company of Newark, New Jersey, with intent then and there to injure said insurer; and the said Standford King alias S. King did willfully aid, counsel and procure him the said Lonnie Smith then and there to burn said certain building in the manner and form aforesaid. * * *'
The decision in the King case is in keeping with the general rule found in 15 Am.Jur. 56, Criminal Law, Section 380, as follows: 'Offenses are not the the same if upon the trial of one proof of an additional fact is required, which is not necessary to be proved in the trial of the other although some of the same acts may be necessary to be proved in the trial of each.' Also see 22 C.J.S., Criminal Law, § 285, page 428.
So it is, material and additional evidence could be introduced and would be required under a manslaughter charge for the culpably negligent operation of an automobile, which type of evidence would not be admissible under either of the other offenses here involved.
Is the offense of reckless driving, where conviction has been had thereupon, such a part of a manslaughter charge, by the culpably negligent operation of an automobile, which arises out of the same transaction, a bar to prosecution for manslaughter?
The general rule appears to be that a prosecution for violation of a motor vehicle act or code will not operate as a bar to...
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