State v. Stewart ( 1974 )

HARRIS, Justice.

Defendant appeals his manslaughter conviction on the claim of former jeopardy by reason of his prior reckless driving conviction. We affirm.

Leroy James Stewart (defendant) was the driver of an automobile involved in a two car collision September 10, 1971. Two occupants of the other car died as a result. Defendant was charged, tried, and convicted of manslaughter in violation of § 690.10, The Code. At trial the State introduced evidence defendant, who was rendered unconscious in the accident, showed signs of having consumed beer. Evidence of the results of a test of the alcoholic content of defendant’s blood were excluded because the attending physician did not certify in advance of withdrawal of the specimen that defendant was'unconscious. See § 321B.5, The Code. The ruling excluding evidence of test results is not challenged by the State. But other evidence of defendant’s consumption of alcoholic beverages remained in the record and the jury was instructed they could use such evidence in determining whether defendant acted with reckless disregard for the safety of others.

The State offered other evidence of defendant’s driving conduct, showing speed and the running of a stop sign. Sufficiency of this evidence to show manslaughter is not challenged.

Defendant’s sole assignment challenges the trial court’s denial of his affirmative defense of former jeopardy. It is undisputed defendant was previously found guilty of reckless driving by reason of the same accident following his indictment but prior to his trial for manslaughter. Defendant was sentenced to a 30 day jail term for his reckless driving conviction in justice of the peace court. He was sentenced to an indeterminate term of not to exceed eight years upon his manslaughter conviction.

I. The right not to be twice tried for the same offense is fundamental. It proceeds from both Amendment 5 of the United States Constitution and from Article I, § 12, of the Iowa Constitution. It is also expressed in § 777.20, The Code.

Defendant seeks to invoke his former jeopardy defense on the theory reckless driving is a lesser included offense of manslaughter. In order to claim the defense this would seem a necessary first step. In State v. Cook, 261 Iowa 1341, 1346, 158 N.W.2d 26, 29, we quoted with approval from earlier authorities as follows:

“ ‘The rule now generally recognized is that, in order that the plea of former jeopardy may be available, it must appear that the two offenses are in substance the same, or of the same nature, or same species, so that the evidence which proves the one would prove the other. If, however, an essential element of one offense is not necessarily present in the other, then there is no former jeopardy, although the same evidence may be offered to sustain the indictment in each case.’ (Citations).” See also State v. O’Kelly, 211 N.W.2d 589, 593 (Iowa 1973).

Lesser included offenses however are thought to be of the same nature or same species, and under our cases it is well settled a prior trial of a lesser included offense is a bar to prosecution for a greater. State v. Murray, 55 Iowa 530, 8 N.W. 350; State v. Sampson, 157 Iowa 257, 138 N.W. 473; State v. Gowins, 211 N.W.2d 302 (Iowa 1973). See generally 22 C.J.S. Criminal Law § 283(c), pages 741—743; 21 Am.Jur.2d, Criminal Law, § 185, page 241; 40 Am. Jur.2d, Homicide, § 185, pages 469 — 470.

An exception was formerly applied in a number of states in cases where the lesser included offense had been tried in an inferi- or court which lacked jurisdiction to consider the greater. The exception was not applied in Iowa. It was expressly rejected in State v. Sampson, supra. Its application was held to be unconstitutional by the United States Supreme Court in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435.

Defendant’s argument reckless driving is a lesser included offense of manslaughter will be considered in the following division.

II. In a number of recent cases we have dealt with lesser included offenses. State v. Hawkins, 203 N.W.2d 555 (Iowa 1973); State v. Habhab, 209 N.W.2d 73 (Iowa 1973); Everett v. Brewer, 215 N.W.2d 244 (Iowa 1974). There are two steps in determining whether one offense is included within another. The first is a consideration of the elements. The lesser offense must be composed solely of some but not all elements of the greater crime. The lesser crime must not require any additional element which is not needed to constitute the greater crime. The lesser offense is therefore said to be necessarily included within the greater. See also Barnett, The Lesser-Included Offense Doctrine: A Present Day Analysis for Practitioners, 5 Conn.L.Rev. 255.

It is only after ühe elements of the lesser crime are shown to be necessarily included in the greater crime that a second inquiry is made. The second inquiry is a factual one, undertaken on a case by case basis. It is not involved in this case because we determine the first test is not met. The lesser crime (reckless driving) requires additional elements not needed to constitute the greater crime (manslaughter).

There are three elements to the crime of reckless driving under § 321.283, The Code. They are: (1) the conscious and intentional operation of a motor vehicle (2) in a manner which creates an unreasonable risk of harm to others (3) where such risk is or should be known to the driver. State v. Baker, 203 N.W.2d 795, 796 (Iowa) and authorities.

Manslaughter under § 690.10, The Code, is the unlawful unintentional killing of a human being by another without malice express or implied. State v. Boston, 233 Iowa 1249, 1255, 11 N.W.2d 407, 410. We have no vehicular homicide statute in Iowa. But our cases acknowledge manslaughter can be committed by operating a motor vehicle in either of two ways. Manslaughter may result from the reckless operation of a motor vehicle. State v. Wallin, 195 N.W.2d 95, 99 (Iowa 1972); State v. Means, 211 N.W.2d 283 (Iowa 1973). It may result from operating a motor vehicle while intoxicated. State v. Davis, 196 N.W.2d 885, 890 (Iowa 1972).

However under either theory proof of manslaughter requires proof of a fact (resultant death) which the other (either reckless driving or driving while intoxicated) does not. See State v. Cook, supra, and Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309.

III. Early state cases, including our own, must be read in the light of Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Benton held the guarantee under Amendment 5 of the United States Constitution that no person be twice put in jeopardy for the same offense is binding on states. Appellant argues Benton therefore contravenes the views heretofore explained and thus necessitates a finding of former jeopardy. We disagree. Subsequent United States Supreme Court cases do not so interpret Benton.

In Waller v. Florida, supra, the United States Supreme Court merely rejected the concept of “dual sovereignty,” a concept we have said never obtained in Iowa. It should be noted the circuit court, upon remand, rejected Waller’s assertion of former jeopardy. The Supreme Court denied cert, on Waller’s later petition from that holding. 414 U.S. 945, 94 S.Ct. 256, 38 L.Ed.2d 168.

In Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29, the holding in Waller v. Florida was accorded a retroactive effect. A majority of the court however refused to reverse, pointing out issue was raised as to whether the state and municipal prosecutions involved were actually for the same offense. The case was remanded for a determination of that issue. Only a minority of the court wished to apply the “same transaction” test under which all charges should have been brought in a single prosecution.

For a study of the single transaction and various other tests applied in former jeopardy cases see 75 Yale L.J. 262. Res judicata in criminal cases by reason of an acquittal of a separate offense which is an element of the offense charged raises a separate question not here involved. See Annot., 9 A.L. R.3d 203.

We made such a determination in State v. Gowins, supra. We think reckless driving and manslaughter are not the same for former jeopardy purposes.

We approve the following:

“The offense of reckless driving is not the same in law or in fact as, nor is it a lesser degree of, the offense of manslaughter arising out of the operation of a motor vehicle, even though they may arise from the same occurrence or transaction, and consequently an acquittal or conviction of reckless driving will not be a bar to a prosecution for manslaughter arising out of the same facts. Nor will an acquittal or conviction of manslaughter serve as a bar to a prosecution for reckless driving arising out of the same facts. Similarly, an acquittal of reckless driving does not bar a subsequent prosecution for causing the death of another by reckless driving, the offense not being the same.” 7 Am.Jur.2d, Automobiles and Highway Traffic, § 343, pages 889-890. See also 22 C.J.S. Criminal Law § 295(2), pages 771 — 772. Cf. State v. Garcia, 198 Iowa 744, 200 N.W. 201.

We conclude defendant is wrong in claiming reckless driving is a lesser included offense of manslaughter. Neither do we believe the case should be reversed on a claim of former jeopardy because we believe the two offenses were not the same.

Affirmed.

MOORE, C. J., and LeGRAND, REES, and REYNOLDSON, JJ., concur. McCORMICK, MASON, RAWLINGS and UHLENHOPP, JJ., dissent.