State v. Eckert, 37584

• Decision Date: 20 November 1970
• Docket Number: No. 37584,37584
• Citation: 181 N.W.2d 264,186 Neb. 134
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, Appellee, v. Leonard ECKERT, Appellant.

Page 264

181 N.W.2d 264

186 Neb. 134

STATE of Nebraska, Appellee, v. Leonard ECKERT, Appellant.

No. 37584.

Supreme Court of Nebraska.

Nov. 20, 1970.

Syllabus by the Court

1. The conviction of a defendant upon the charge of intoxication does not bar a subsequent prosecution for the offense of operating a motor vehicle while under the influence of alcoholic liquor.

2. In a prosecution for operating a motor vehicle while under the influence of intoxicating liquor, the operation of the motor vehicle is an element of the offense and may be established by circumstantial evidence.

Frederick E. Wanek, Grant, for appellant.

Clarence A. H. Meyer, Atty. Gen., Ralph H. Gillan, Asst. Atty. Gen., Lincoln, for appellee.

Heard before CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

CARTER, Justice.

On June 12, 1969, the defendant was charged with a violation of the liquor laws in two counts, first, with intoxication and, second, with unlawfully operating a motor vehicle upon a public highway while under the influence of intoxicating liquor. Defendant was found guilty in county court on both counts. He was assessed a fine of $10 and costs on the charge of intoxication which he paid. On the charge of operating a motor vehicle while under the influence of intoxicating liquor, he was fined $100 and costs and his operator's license suspended for 6 months. From the latter sentence, defendant appealed to the district court and was again found guilty in that court. The identical sentence was imposed as in the county court. From this judgment and sentence, the defendant has appealed to this court.

The primary issue on appeal is the correctness of the trial court's ruling on a plea in bar filed by the defendant in the district court. The plea in bar alleged that defendant had previously been convicted of intoxication and that such charge and conviction thereof is a bar to a further charge of intoxication or of a charge for drunk driving. It is shown that both charges grew out of the same incident. The question is one of law that does not appear to have been previously decided by this court.

It is fundamental under our Constitution that no person shall be compelled in any criminal case to be twice put in jeopardy for the same offense. Art. I, s. 12, Constitution of Nebraska. Cases decided by this court have held that a defendant who has been found not guilty of a higher crime may not be again prosecuted for a lesser offense included within the former. The question here, however, is whether or not the offense of intoxication is a lesser offense than operating a motor vehicle on a public highway while under the influence of intoxicating liquor within the meaning of the double jeopardy rule.

In Warren v. State, 79 Neb. 526, 113 N.W. 143, the defendant was first tried and acquitted of murder during an attempt to perpetrate a robbery. Defendant was subsequently charged with robbery of the person formerly alleged to have been murdered growing out of the same incident. A demurrer to the plea in bar was sustained. This court affirmed, holding that double jeopardy was not involved. In the case of In re Resler, 115 Neb. 335, 212 N.W. 765, defendant was acquitted of murder by poisoning. Defendant was subsequently charged under a different statute with poisoning with intent to take life. This court held that the second charge was included in the first and that the acquittal on the first charge was a bar to the prosecution of the second. These two cases appear to point up the differences as to when former jeopardy does or does not apply.

In Stevison v. State (Okl.Cr.App.), 449 P.2d 916, the same situation arose as we have here. In holding public drunkenness and operating a motor vehicle while under the influence of intoxicating liquor to be separate and distinct offenses and that the conviction for one is no bar to a conviction for the other, the court said: 'This logically leads us to the consideration of whether Public Drunkenness is a necessary included offense of the offense of Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor, or whether it constitutes an attempt to commit the same. We believe the answer to this proposition can only be in the negative, for the elements necessary to prove the offense of Public Drunkenness are not elements necessary to be proven for the offense of Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor, * * *.'

In Reese v. State, 89 Ind.App. 378, 165 N.E. 780, the court said: 'We cannot concur in appellant's contention. The offense for which he paid his fine was complete when he appeared in a public place in a state of intoxication; the other offense was not complete until, being in such condition, he drove his automobile on the public highway--an act which from its very nature could but endanger the lives of others traveling upon such highway. These offenses, under our statute, are separate and distinct, and a conviction of one is no bar to a conviction for the other.' See, also, Tibbs v. State, 89 Ga.App. 716, 80 S.E.2d 834.

The instant case appears to fall under the rule announced in Warren v. State, Supra, and not under the rule applied in the case of In re Resler, Supra. The applicable rule appears more similar to a case where a defendant was first charged and acquitted of murder and subsequently charged with a robbery growing out of the same incident than with a case of an acquittal of murder by poisoning and a subsequent charge of poisoning with intent to take the life of another. In Warren v. State Supra, we said: 'The essential elements necessary to constitute the crime of murder and those necessary to the crime of robbery are entirely different. In proving the commission of murder, under some circumstances, it may be necessary to show an attempt to rob or an actual robbery, but in proving a robbery it...