Opinion
Hearing Granted by Supreme Court Nov. 4, 1935.
Appeal from Superior Court, Los Angeles County; William C. Doran, Judge.
Thomas H. Burkhardt was convicted of driving an automobile while under the influence of intoxicating liquor, and he appeals.
Reversed.
CRAIL, P. J., dissenting.
COUNSEL
Frederic H. Vercoe, Public Defender, and Richard F. Bird, Deputy Public Defender, both of Los Angeles, for appellant.
U.S. Webb, Atty. Gen., and James S. Howie, Deputy Atty. Gen., for the People.
OPINION
WOOD, Justice.
Defendant was accused in the superior court of the violation of section 112 of the California Vehicle Act (St. 1923, p. 553, as amended by St. 1929, p. 537), it being specifically set forth in the information that on March 7, 1935, he drove an automobile "upon a public highway while under the influence of intoxicating liquor." Defendant pleaded a former conviction of the offense charged, and the trial court found "for the people" on this plea. At the trial it was stipulated that defendant on March 8, 1935, in the court of the justice of the peace at El Monte, pleaded guilty to the charge of "being drunk in an automobile upon a public highway," in violation of the provisions of a county ordinance, the acts forming the basis of the charge in the justice’s court being also the foundation of the charge in the superior court. The county ordinance was not introduced in evidence and we must therefore consider the question involved on the basis of the stipulation.
Appellant maintains that his plea of former conviction should have been upheld on the ground that every element constituting the offense in the justice’s court is necessarily an element in the offense charged in the superior court and therefore the latter charge includes the former. Innumerable decisions have been made on the subject of former jeopardy by our own courts and those of sister states. As said in People v. Defoor, 100 Cal. 150, 34 P. 642, 643, "The circumstances under which courts have been called upon to determine what facts constitute the same offense have been so different and numerous that the authorities upon this subject are seriously conflicting, so far as the general question is concerned."
The California case most like the present one is that of People v. McDaniels, 137 Cal. 192, 69 P. 1006, 1007, 59 L. R. A. 578, 92 Am. St. Rep. 81. In that case defendant pleaded guilty to the charge of battery before a justice of the peace and later was found guilty in the superior court of the crime of assault with a deadly weapon with intent to commit murder. In reversing the judgment the court said: "Battery includes and implies an assault, for there can be no battery without an assault. What the defendant did, therefore, may have constituted a simple assault, or assault and battery, or assault with intent to murder. * * * The prosecution before the justice of the peace was for the same acts of the defendant, but the complaint and judgment omitted the alleged intent to murder charged in the information. The identity of the acts of the defendant in the two cases is not questioned, and the defendant has therefore been convicted of the assault which is an essential fact to be proven under the information; the intent to murder not being a crime in the absence of some physical act constituting an assault. It is well settled that a conviction of a lower offense embraced in a higher one, for the commission of which a defendant was tried, is an acquittal of the higher offense, and an independent trial and conviction of the lower offense, when pleaded, must, upon the same principle, be a bar to the prosecution for the higher offense which included it." The same principle is followed in People v. Defoor, supra, wherein the court said: "The case, therefore, stands precisely as though the first information had been for an assault. The defendant having been convicted for that offense, he could not be prosecuted for mayhem committed during the same assault without violating the constitutional provision which protects him against being twice convicted of the same offense,-a provision as important, and to be as sacredly regarded, as the right of a trial by jury, or any other constitutional provision intended for the protection of the life, liberty, or property of a citizen." A line of cases giving much force to defendant’s argument is that in which it is held that a person accused of murder and convicted of manslaughter cannot be again tried for murder even though the defendant himself asks for a new trial. People v. Muhlner, 115 Cal. 303, 47 P. 128; People v. Smith, 134 Cal. 453, 66 P. 669; People v. McFarlane, 138 Cal. 481, 71 P. 568, 72 P. 48, 61 L. R. A. 245. In Re Application of O’Connor, 80 Cal.App. 647, 252 P. 730, 731, the rule is stated as follows: "In a case where one is convicted of an offense necessarily included within another, and later is prosecuted for the greater, a plea of once in jeopardy will be sustained, for such conviction might have been had under the latter. The converse would also be true if the prosecution had begun with the greater offense, and there had been an acquittal, and subsequent prosecution attempted under the lesser charge."
Application of the rule of the McDaniels Case, supra, and a comparison of the facts of that case with the facts of the case before us lead to the conclusion that the judgment must be reversed. In each case the defendant pleaded guilty to a misdemeanor in the justice’s court; in each case the act punished in the justice’s court was necessarily included in the offense charged in the superior court; and in each case it was necessary to prove an additional fact to constitute the crime prosecuted in the later action. In the McDaniels Case the assault was the foundation of the charge in the justice’s court and it became necessary to prove an additional fact, the intent, to constitute the second offense charged. In the present case drunkenness in an automobile on a highway was the foundation of the charge in the justice’s court and it became necessary to prove an additional fact, driving the automobile, to constitute the second offense charged.
The judgment is reversed.
I concur: McCOMB, Justice pro tem.
CRAIL, Presiding Justice.
I dissent.
The defendant drove an automobile while intoxicated and while doing so injured a child and was found guilty of violating section 112 of the California Vehicle Act. On this appeal he does not question the sufficiency of the evidence and advances only one ground to support his plea for reversal, i. e., that he had been previously convicted in the justice’s court of "being drunk in an automobile upon a public highway as said offense is defined in Ordinance No. 1735 of the County of Los Angeles."
It does not help the defendant to say that this ordinance was not introduced in evidence. The burden was on him to prove the former jeopardy, and if the ordinance is not in the evidence, he failed to prove his defense of former jeopardy. All intendments and presumptions must be indulged in favor of the judgment of the superior court. But let us stretch a point in defendant’s favor and assume that the ordinance is included in evidence by reason of the stipulation. There is no question about the wording of the ordinance. It reads as follows: "Section 1. It shall be unlawful for any intoxicated person, or any person in an intoxicated condition, wilfully to appear, remain, or be in or on any public highway, street, alley, way, park, playground, or public place in the unincorporated territory of the County of Los Angeles whether such person is or is not in or upon any automobile, street or interurban car, vehicle, or conveyance. Section 2. Any person violating any provision of this ordinance shall be deemed guilty of a misdemeanor," etc.
It will be observed that it was not necessary for the defendant to commit any act in order to be guilty of the offense defined in the ordinance. It was only necessary for him to remain or be in a public place "whether such person is or is not in or upon any automobile, [or] street." The act of becoming intoxicated is no part of the offense. The ordinance makes it unlawful for certain persons, i. e., intoxicated persons, to remain or be in a public place, and by the very language of the ordinance it is clearly immaterial "whether such person is or is not in or upon any automobile [or] street." In order to be guilty under section 112 of the California Vehicle Act, a person must commit an act, i. e., drive a vehicle on a public highway. It seems clear to me that the prior conviction did not constitute a former jeopardy for the reason that it not only did not necessarily include any automobile or any highway, but did not include any act whatever. Certainly it did not include, neither was it included in, the act which is the gravamen of the offense defined in section 112.
In this connection it might be well to inquire by whose direction the words, "in an automobile upon a public highway," were inserted in the complaint in view of the fact that by the very language of the ordinance such matters are immaterial.
Viewing the case as I do, the judgment should be affirmed.