State v. Garcia, 36373.

• Citation: 198 Iowa 744,200 N.W. 201
• Decision Date: 17 October 1924
• Docket Number: No. 36373.,36373.
• Parties: STATE v. GARCIA.
• Court: United States State Supreme Court of Iowa

198 Iowa 744

200 N.W. 201

STATE

v.GARCIA.

No. 36373.

Supreme Court of Iowa.

Oct. 17, 1924.

Appeal from District Court, Jefferson County; F. M. Hunter, Judge.

Defendant was indicted by the grand jury for the crime of operating a motor vehicle while in an intoxicated condition. The defendant entered a plea of not guilty. Under these issues the cause was tried to a jury. At the close of the State's evidence the defendant withdrew his plea of not guilty, and entered a plea of former conviction, to which the State demurred. The demurrer was overruled and the jury instructed to return a verdict for the defendant. The State appeals. Reversed without remand.Ben J. Gibson, Atty. Gen., Maxwell A. O'Brien, Asst. Atty. Gen., and John G. Barwise, County Atty., of Fairfield, for the State.

Jo. R. Jaques, of Ottumwa, and X. C. Nady, of Fairfield, for appellee.

PRESTON, J.

[1] The evidence was sufficient to take the case to the jury and sustain a conviction of the charge made. The defendant was arrested, and the transaction occurred early in the morning of September, 1923. Later on in the morning defendant appeared before a justice of the peace, where he was charged with intoxication. Defendant pleaded guilty and paid a fine of $10 and costs. The information was filed by officer Copeland. It is not claimed that the prosecution before the justice of the peace was brought about through the procurement or connivance of the defendant. Defendant was also bound over to the grand jury for the crime of operating a motor vehicle while in an intoxicated condition. It is not claimed that defendant was intoxicated at any other time. The question is whether defendant was put in jeopardy for the crime charged herein by the conviction before the justice of the peace, and whether the conviction for intoxication is a conviction for the crime charged herein. The justice of the peace, while he had jurisdiction as a committing magistrate to bind the defendant over to the grand jury, had no jurisdiction to try the defendant for the crime charged herein, which is an indictable offense. The first prosecution was under section 2402 of the Code of 1897, which provides, if any person shall be found in a state of intoxication, he is guilty of a misdemeanor, and shall be fined not less than $5 nor more than $25, etc. Chapter 96, Acts 40th Gen. Assem., provides that whoever, while in an intoxicated condition, operates a motor vehicle, shall at the conviction be sentenced to the penitentiary for a period not exceeding one year, or pay a fine of not more than $1,000, etc.

It is thought by appellee that the test is whether the same evidence would sustain a conviction of both charges. We said in State v. Broderick, 191 Iowa, 717, 719, 183 N. W. 310, 311:

“The ‘same evidence test’ is not infallible, but may be accepted as true only in a general sense. While the difference of evidence conclusively establishes the distinctness of the accusations, it does not follow e converso that two indictments are identical in their accusations, although the same evidence may be legally competent and sufficient to sustain each; because two crimes may be committed in the course of one and the same transaction.”

[2][3][4][5] Here the issues tendered by the indictment were different from those under the information for intoxication. To sustain a conviction for intoxication it was only necessary to show that defendant was intoxicated. It would be wholly immaterial what he was doing, whether operating a motor vehicle or doing something else, while in the charge under the indictment it would be necessary not only to show that he was intoxicated, but that he was operating a motor vehicle while intoxicated. The two offenses are entirely separate. We find this doctrine in the books. A single act may be an offense against two statutes, and, if each statute requires proof of an additional act which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other. 8 R. C. L. 149, citing State v. Moore, 143 Iowa, 240, 121 N. W. 1052, 21 Ann. Cas. 63. There is no doubt that it is within the power of the Legislature to create two or more offenses which may be committed by a single act, each of which is punishable by itself. A conviction or acquittal in such case under either statute would be no...