State v. Elliott
| Decision Date | 21 September 1971 |
| Citation | 488 P.2d 1189,93 Adv.Sh. 447,6 Or.App. 436 |
| Parties | STATE of Oregon, Appellant, v. Larry James ELLIOTT, Respondent. |
| Court | Oregon Court of Appeals |
Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for appellant. On the brief were Lee Johnson, Atty. Gen., Jacob B. Tanzer, Sol. Gen. and J. Bradford Shiley, Jr., Special Asst. Atty. Gen., Salem.
Ralph Currin, Pendleton, argued the cause for respondent. With him on the brief were Currin & French, Pendleton.
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 offence' in violation of the Fifth Amendment 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, 92 Or.App.Adv.Sh. 963, 484 P.2d 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:
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 case, 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):
* * *'
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.App.2d 196, 275 P.2d 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 A.L.R. 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, Which 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 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889), and State v. Cooper, 13 N.J.L. 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 reckless 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 conclusion 7 (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 A.L.R. 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 P.2d 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, 352 P.2d 972. Moreover, double jeopardy was not at issue in that case.
Matter of Martinis v. Supreme Court, 15 N.Y.2d 240, 258 N.Y.S.2d 65, 206 N.E.2d 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 different offenses. * * *' United States v. Brimsdon, 23 F.Supp. 510, 512 (W.D.Mo.1938).
The offenses of drunk 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,...
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