State v. McLaughlin

• Decision Date: 09 October 1926
• Docket Number: 27,031
• Citation: 249 P. 612,121 Kan. 693
• Parties: THE STATE OF KANSAS, Appellee, v. RUSSELL MCLAUGHLIN, Appellant
• Court: Kansas Supreme Court

249 P. 612

121 Kan. 693

THE STATE OF KANSAS, Appellee, v. RUSSELL MCLAUGHLIN, Appellant

No. 27,031

Supreme Court of Kansas

October 9, 1926

Decided July, 1926.

Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Double Jeopardy--Identity of Offenses--Where One Crime Includes Another. Rule followed that a prosecution and conviction (or acquittal) for some part of a single criminal delinquency bars another prosecution for the whole or any part of defendant's misconduct constituting that identical offense--following State v. Colgate, 31 Kan. 511, 3 P. 346; State v. Chinault, 55 Kan. 326, 40 P. 662.

2. INDICTMENT AND INFORMATION--Election Between Counts--Offenses Against Liquor Law. Where, according to the stipulated facts defendant drank a considerable quantity of intoxicating liquor and got into his automobile and drove it along a public street and wrecked it against the curbing and was shortly afterwards found in a drunken stupor, defendant's conduct constituted a single criminal delinquency and not two distinct crimes carrying separate and successive punishments; and the trial court should require the county attorney to elect whether he would stand on the count charging defendant with being drunk in a public place or on the count charging him with driving an automobile in a public street while in a drunken condition.

P. L. Courtright, of Independence, for the appellant.

Charles B. Griffith, attorney-general, Roland Boynton, assistant attorney-general, B. W. Berg, county attorney, and W. B. Grant, deputy county attorney, for the appellee.

OPINION

DAWSON, J.:

The defendant was convicted of two offenses--being drunk and intoxicated on a public highway, and operating an automobile on a public highway while in a drunken and intoxicated condition.

A jury was waived and counsel for the state and for the defendant submitted the cause to the trial court upon an agreed statement of facts, which in part reads:

"That at about 4:30 a. m. on the 9th day of August, 1925, Russell McLaughlin, the defendant in this case, was arrested by Officer P. H. Rouse, of Independence, and the sheriff of Montgomery county, on Railroad street between Ninth and Tenth streets in the city of Independence, Kansas. That immediately prior to his arrest he had been drinking intoxicating liquor and drove his automobile along Railroad street between Ninth and Tenth streets and ran into the curb or gutter and wrecked his car. That he continued to remain there in his wrecked car on Railroad street, which is a public thoroughfare, for about a half hour, when the officers arrived and defendant was arrested. At the time of his arrest he was intoxicated to such an extent that it was necessary for the officers to arouse him and assist him out of the car and into their car and assist him up to the city jail of Independence, Kansas."

Defendant filed a motion requiring the state to elect whether it would stand on the count charging him with the offense of being drunk on a public highway or on the count charging defendant with the offense of operating an automobile upon a public highway while in a drunken and intoxicated condition. This record recited:

"THE COURT: The motion is to require the county attorney to elect upon which count he stands. The motion will be overruled."

"[COUNSEL FOR DEFENDANT]: Now at this time the defendant requests the court to make a finding on the first count before he finds on the second.

"THE COURT: The court will find the defendant guilty upon the first count, being intoxicated in a public place in violation of law."

"[COUNSEL FOR DEFENDANT]: Comes now the defendant, Russell McLaughlin, having been convicted under the first count and now moves the court to dismiss the second count of the information herein, and dismiss and discharge this defendant so far as the second count is concerned, because a conviction under the first count is a bar to a conviction under the second count, and that the defendant has been in former jeopardy in this case; that being drunk at the same time and place is an essential ingredient for other offenses charged.

"THE COURT: The motion will be overruled. The court finds the defendant, Russell McLaughlin, guilty on the second count, of driving a car immediately after he had been drinking intoxicating liquor, all in the manner and form charged in the second count of the information."

Judgment on each count was entered and sentences imposed accordingly.

Defendant appeals, contending that his conviction and sentence on both counts constitute a breach of his constitutional right not to be placed in jeopardy twice nor twice subjected to punishment for one and the same offense.

The statute defining the offense involved in the first count charged against defendant reads:

"If any person shall be drunk in any highway, street, or in any public place or building, or if any person shall be drunk in his own house, or any private building or place, disturbing his family or others, he shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not exceeding twenty-five dollars, or by in the county jail for a period not exceeding thirty days." (R. S. 21-2128.)

The offense involved in the second count is thus defined:

"It shall be unlawful for any person under the influence of intoxicating liquor or any exhilarating or stupefying drug to drive, operate or have charge of the power or guidance of any automobile, motorcycle or any motor vehicle propelled by other than muscular power, upon any public road, highway, street, avenue, driveway or alley within the state of Kansas. And that the taking or use of any intoxicating liquor or exhilarating or stupefying drug by the person driving, operating or in charge of the power and guidance of any automobile, motorcycle, or other vehicle or while operating such vehicle propelled by other than muscular power, within a reasonable time prior to taking charge or guidance of such vehicle shall be construed as prima facie evidence that such person is under the influence thereof." (R. S. 21-2160.)

Defendant's point is simply this: Being drunk on a public highway was an essential element of the offense of driving an automobile on a public highway while drunk, and that two distinct penal offenses cannot be carved out of that single and identical delinquency.

The authorities seem to favor defendant's contention. A prosecution and conviction or acquittal for any part of a single offense bars further prosecution for any act comprising the whole or any part of defendant's misconduct pertaining to that identical delinquency. Thus, in State v. Colgate, 31 Kan. 511, 3 P. 346, a defendant was prosecuted and acquitted of the charge of setting fire to and burning a grist mill, and afterwards prosecuted on the charge of setting fire to and burning the books of account, it being the same identical fire involved in the first prosecution. It was held that defendant's acquittal of the charge of setting fire to and burning the mill was a good defense to the charge of setting fire to and burning the books of account pertaining to the business of the mill. In the court's opinion Mr. Justice Valentine reviewed many cases from other jurisdictions, and said:

"And upon general principles a single offense cannot be split into separate parts, and the supposed offender be prosecuted for each of such separate parts, although each part may of itself constitute a separate offense. If the offender be prosecuted for one part, that ends the prosecution for that offense, provided, such part of itself constitutes an offense for which a conviction can be had. And generally we would think that the commission of a single wrongful act can furnish the subject matter or the foundation of only one criminal prosecution." (p. 515.)

In State v. Chinault, 55 Kan. 326, 40 P. 662, an information was filed in the district court of Wyandotte county charging defendant with the offense of assault with intent to kill. Whil...