State v. Martin
| Citation | 96 N.E.2d 776,154 Ohio St. 539 |
| Decision Date | 14 February 1951 |
| Docket Number | No. 32311,32311 |
| Parties | , 43 O.O. 501 STATE v. MARTIN. |
| Court | United States State Supreme Court of Ohio |
Syllabus by the Court.
1. Under the state and federal constitutions no person shall be twice put in jeopardy for the same offense.
2. One act may constitute several offenses.
3. When a single unlawful act results in the killing of more than one person, each homicide constitutes a separate offense for which the defendant may be tried without being twice put in jeopardy.
In the Court of Common Pleas the grand jury returned an indictment charging in part that the defendant Martin 'on or about the 1st day of July 1949, at the county aforesaid, unlawfully and unintentionally killed John M. Batori while engaged in the violation of a state law applying to the use and regulations of traffic on, over or across the roads or highways. * * *'
To this indictment the defendant filed a plea in bar alleging that previously he had been indicted and tried for the identical offense of manslaughter, and that the jury in the previous trial had returned a verdict of not guilty. In his plea the defendant states further that 'on the 1st day of July 1949, he was involved in an accident and that two deaths resulted simultaneously as a consequence thereof; that by reason of the said former trial this defendant has been once in jeopardy for the alleged offense set forth in the indictment herein and for which he stands forever acquitted.'
To this plea in bar the state filed a demurrer.
The Court of Common Pleas overruled the demurrer and discharged the defendant.
On an appeal by the state to the Court of Appeals for a review on questions of law the judgment of the Court of Common Pleas was reversed and the cause was remanded to that court for further proceedings.
The case is in this court by reason of the allowance of the defendant's motion for leave to appeal.
Frank T. Cullitan, Gertrude Bauer, Cleveland, for appellee.
Frank Seth Hurd, Cleveland, for appellant.
The indictment in this case was returned by the grand jury under favor of the provisions of Section 6307-18(a), General Code, which read as follows:
'Whoever shall unlawfully and unintentionally kill another while engaged in the violation of any law of this state applying to the use or regulation of traffic, shall be guilty of manslaughter in the second degree.'
The Fifth Amendment to the Constitution of the United States reads in part:
'nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb'.
Similarly Section 10 of Article I of the Constitution of Ohio reads in part as follows:
'No person shall be twice put in jeopardy for the same offense.'
Is this defendant now being 'twice put in jeopardy for the same offense' by reason of the fact that he previously was indicted and tried for killing another person, John Police, not mentioned in the instant indictment?
Restated more tersely, has the defendant been tried previously for the same offense?
In still other words, was the killing of John Police in the first case the same offense as the killing of John M. Batori in the instant case?
It is conceded that the defendant was driving a truck which collided with a motorcycle on which both Police and Batori were riding, and both were killed instantly.
It is elementary law that one act may constitute several offenses, for example under a municipal ordinance, a state statute and a federal statute.
The defendant contends that the gravamen of the offense here charged is the unlawful operation of the truck, and that the fact that more than one person was killed is immaterial so far as the offense is concerned. One difficulty with this view is that the defendant was not indicted solely for the unlawful operation of his truck. Of course that is an element in the offense; but another essential element is the killing of 'another'--a particular person. Another difficulty with this contention is the obvious fact that in the first case the defendant could not have been convicted of killing Batori, since Police was the victim named in that indictment; and in the instant case it is equally obvious that the defendant can not be convicted of killing Police, since Batori is the victim named. As observed in the opinion in the case of State v. Rose, 89 Ohio St. 383, 106 N.E. 50, 51, L.R.A. 1915 A, 256, 'the usual test accepted by the textwriters on criminal law and procedure is this: If the defendant upon the first charge could have been convicted of the offense in the second, then he has been in jeopardy.' And as further stated in the opinion in that case 'The words 'same offense' mean same offense, not the same transaction, not the same acts, not the same circumstances or same situation.'
In the annotation in 172 A.L.R. 1062, the rule is summarized as follows:
'The majority of states 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.'
In the second paragraph of the syllabus in the case of State v. Billotto, 104 Ohio St. 13, 135 N.E. 285, this court held:
The defendant here seeks to distinguish that case from the instant one by reason of the fact that in that case the killings resulted from the firing of several shots in instantaneous succession. The defendant in that case contended that the shots were so close together as to constitute only one offense and that therefore he could be tried in only one case although two persons were killed. This court agreed that there was only one transaction but held that each killing was a separate offense.
Likewise, in the third paragraph of the syllabus in the case of Duvall v. State, 111 Ohio St. 657, 146 N.E. 90, this court held that 'A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other.'
Under the circumstances the Court of Appeals was not in error in holding that the...
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