State v. Weisz
| Decision Date | 23 October 1984 |
| Docket Number | Cr. N |
| Citation | 356 N.W.2d 466 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. John C. WEISZ, Defendant and Appellant. o. 1005. |
| Court | North Dakota Supreme Court |
Terry W. Elhard, State's Atty., Ashley, for plaintiff and appellee State of N.D.
Frank J. Wikenheiser, of Wheeler, Wolf, Peterson, Schmitz, McDonald & Johnson, Linton, for defendant and appellant.
John C. Weisz appealed from the criminal judgment and commitment entered by the district court of McIntosh County convicting Weisz of unauthorized use of a motor vehicle. We affirm the conviction.
On October 31, 1982, in the early morning hours, Weisz and Warren Martz took a Lehr public school bus without the owner's consent. While driving the bus, Weisz struck and damaged five mailboxes. Later Weisz and Martz entered a hayfield and used the bus to push hay bales. Weisz drove the bus over a large bale and the bus became immobilized. Weisz and Martz used the bus's fire extinguisher and then they abandoned the bus. Subsequently, the bus was totally destroyed by fire.
Weisz was tried twice for different crimes that arose out of the October 31, 1982, school bus incident. On October 6, 1983, a jury convicted Weisz of criminal mischief under Section 12.1-21-05, N.D.C.C. for damaging the five mailboxes. On November 15, 1983, Weisz was tried before the district court judge for the crime of unauthorized use of a motor vehicle under Section 12.1-23-06, N.D.C.C. Evidence at this trial showed that the school bus was totally destroyed by fire. The clerk-treasurer of the Lehr school district testified that the school district received $14,000 in insurance proceeds for the destroyed bus. On appeal Weisz raises two issues.
Weisz contends that the trial court should have granted judgment of acquittal under Rule 29, N.D.R.Crim.P., on grounds of double jeopardy because he had already been convicted of criminal mischief arising out the same school bus incident.
The doctrine of double jeopardy generally provides that a person may not be tried a second time for the same offense. 22 C.J.S. Criminal Law Sec. 238, p. 615. Double jeopardy does not exist unless all the elements of the first crime are included in the second crime. E.g., State v. Pendergast, 340 N.W.2d 454 (N.D.1983). See also Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); State v. Spann, 287 N.W.2d 406 (Minn.1979). When a defendant is put in jeopardy for one act, prosecuting him for a separate and distinct act is not prohibited even though the evidence offered to establish both crimes substantially overlaps.
It is obvious that damaging mailboxes is separate and distinct from using a motor vehicle without the owner's consent. We conclude that Weisz was properly charged and convicted of separate offenses and that double jeopardy does not exist.
Weisz argues next that the trial judge should have granted his motion for...
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State v. Grenz, Cr. N
...of the offense defined by Section 39-06-42(1) would be included in the charge of a violation of Section 39-16.1-21. State v. Weisz, 356 N.W.2d 466 (N.D.1984); 21 Am.Jur.2d Criminal Law, Sec. The judgment of conviction is affirmed. ERICKSTAD, C.J., and GIERKE, J., concur. LEVINE, Justice, di......
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State v. Robideaux
...548 (1990), expanded on prior double jeopardy jurisprudence and that, therefore, this Court's holdings in such cases as State v. Weisz, 356 N.W.2d 466 (N.D.1984), are no longer controlling. In Grady, the United States Supreme Court expanded its double jeopardy analysis by holding that the D......