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Akron v. Kline

Supreme Court of Ohio
May 31, 1956
135 N.E.2d 265 (Ohio 1956)

Opinion

No. 34712

Decided May 31, 1956.

Criminal law — Former jeopardy — Single act as offenses by two provisions of municipal code — Conviction for reckless operation of automobile — Not bar to prosecution for driving while intoxicated, when — Additional fact to prove either offense.

CERTIFIED by the Court of Appeals for Summit County.

An automobile, while being driven by defendant in the city of Akron, ran off the street and over an embankment. Defendant was arrested and charged by separate affidavits, signed by the same police officer and at the same time, with reckless driving in violation of Section 78 of Chapter 24 of the Akron City Code and with operating an automobile while under the influence of intoxicating liquor in violation of Section 77 of Chapter 24 of the Akron City Code. Both charges were based on the same incident of running off the street and over the embankment.

Defendant later appeared before the Akron Municipal Court, pleaded guilty to the charge of reckless driving, and was assessed a fine and costs, which were paid.

Thereafter defendant was brought before the same court for trial on the charge of operating an automobile while under the influence of intoxicating liquor, and he entered a plea of former jeopardy. The jury returned a verdict of guilty, and defendant was sentenced to fine and imprisonment.

On appeal to the Court of Appeals, the judgment of the trial court was affirmed, and the judges, finding their judgment to be in conflict with a judgment of the Court of Appeals of the Eighth Appellate District, certified the cause to this court for review.

Mr. Edward O. Erickson, director of law, Mr. Paul J. Lombardi and Mr. Rufus L. Thompson, for appellee.

Mr. Ben H. Baldwin, for appellant.


Defendant contends that he has been twice placed in jeopardy for the same act; that a conviction and sentence for reckless driving and conviction and sentence for driving while intoxicated cannot be based upon the same act; that reckless driving is a lesser included offense both in fact and law of drunken driving where both offenses are based on the identical act; and that where the same act supports both offenses the trial court must elect to prosecute the larger or the lesser crime and not both.

Section 78 of Chapter 24 of the Akron City Code, relative to reckless driving, provides:

"No person shall operate a vehicle * * * without due regard for the safety and rights of the pedestrians and drivers and occupants of all other vehicles * * * and so as to endanger the life, limb, or property of any person while in the lawful use of the streets or highways."

Section 77 of Chapter 24, relative to driving while intoxicated, provides:

"No person who is under the influence of intoxicating liquor or narcotic drugs or opiates shall operate or be in actual physical control of any vehicle * * *."

To sustain a conviction for reckless driving under Section 78, above quoted, three elements are necessary: (1) Operating a vehicle; (2) operating it without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles; and (3) operating it so as to endanger the life, limb, or property of any person while in the lawful use of the streets or highways.

To sustain a conviction for operating or being in actual physical control of a vehicle while intoxicated, under Section 77, above quoted, two elements are necessary: (1) Operating or being in actual physical control of a vehicle; and (2) being under the influence of intoxicating liquor while operating or being in actual physical control of the vehicle.

Evidence which would be sufficient to sustain a conviction for reckless driving would not be sufficient to sustain a conviction for operating or being in control of a vehicle while intoxicated. Being under the influence of intoxicating liquor is not necessarily an element of the former offense, and reckless operation is not an element of the latter offense.

A single act may constitute several offenses by virtue of several statutes or ordinances. A conviction on one charge may not be a bar to a subsequent conviction and sentence on the other charge unless the evidence required to support the conviction on one would be sufficient to warrant a conviction on the other. Duvall v. State, 111 Ohio St. 657, 146 N.E. 90.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.


Summaries of

Akron v. Kline

Supreme Court of Ohio
May 31, 1956
135 N.E.2d 265 (Ohio 1956)
Case details for

Akron v. Kline

Case Details

Full title:CITY OF AKRON, APPELLEE v. KLINE, APPELLANT

Court:Supreme Court of Ohio

Date published: May 31, 1956

Citations

135 N.E.2d 265 (Ohio 1956)
135 N.E.2d 265

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