
    STEINER v. CITY OF CLEVELAND (2 cases)
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9198 and 9199.
    Decided Oct. 22, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    AUTOMOBILES.
    (50 C2) Conviction and sentence for care- ' less driving and conviction and sentence for driving automobile while intoxicated, cannot be based upon the same act.
    Error to Municipal Court.
    Case No. 9198 reversed.
    Case No. 9199 affirmed.
    Wm. C. Braken, Cleveland, for Steiner.
    Lawrence O. Payne, Cleveland, for City of Cleveland.
    STATEMENT OF FACTS
    These two cases came into this court on petitions in error to the Municipal Court of the City of Cleveland, one being for careless driving and the other for driving while intoxicated, both being the same act by which the injury was occasioned. Upon the trial in the Municipal Court the defendant was found guilty of both charges and fined in the careless driving case Fifty Dollars and sentenced ninety days to the Workhouse, and upon the charge of intoxication he was found guilty and fined One Hundred Dollars and sentenced to the Workhouse for ninety days. The workhouse sentence in the first case was suspended, if the defendant would promise not to drive his car for a period of time, but the fine was allowed to stand and the fine and imprisonment was allowed to stand in the second case, or in the case of intoxication.
   VICKERY, J.

We have gone over this record and heard the arguments of counsel and think that jn-asmuch as there was but one offense — and apparently the police in order to make sure swore out two affidavits, one for careless driving and the other for intoxication, thinking perhaps that in case they were unable to prove intoxication they could prove careless driving, —we have heard these two cases together.

We think the record of this case shows that the defendant was driving his car while intoxicated and that the court had sufficient evidence before him to warrant the conviction. We think, however, that it being the same act, that it does not seem to be right or just that the man should be punished twice for the same offense and, therefore, the judgment in the careless driving case. No. .9198, will be reversed and the defendant discharged in this case.

In case No. 9199, driving while intoxicated, there is nothing in the case but the weight of the evidence which would warrant the court in disturbing it, and inasmuch- as we are not in the habit of weighing the evidence, the trial court having the parties before it, we do not feel called upon to disturb the finding in this respect. The judgment will, therefore, be affirmed in case No. 9199.

(Sullivan, PJ., and Levine, J., concur.)  