
    The State of Ohio, Appellee, v. Martin, Appellant.
    (No. 32311
    Decided February 14, 1951.)
    
      
      Mr. Frank T. Cullilan, prosecuting attorney, and Miss Gertrude M. Bauer, for appellee.
    
      Mr. Frank Seth FLurd, for appellant.
   Weygandt, C. J.

The indictment in this case was returned by the grand jury under favor of the provisions of Section 6307-18 (a), General Code, which read as follows:

“Whoever shall unlawfully and unintentionally kill another while engaged in the violation of any law of this state applying to the use or regulation of traffic, shall be guilty of manslaughter in the second degree.”

The Fifth Amendment to the Constitution of the United States reads in part:

“Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”

Similarly Section 10 of Article I of the Constitution of Ohio reads in part as follows:

“No person shall be twice put in jeopardy for the same offense.”

Is this defendant now being “twice put in jeopardy for the same offense” by reason of the fact that he previously was indicted and tried for killing another person, John Police, not mentioned in the instant indictment?

Restated more tersely, has the defendant been tried previously for the same offensel

In still other words, was the killing of John Police in the first, case the same offense as the killing of John M. Batori in the instant case?

It is conceded that the defendant was driving a truck which collided with a motorcycle on which both Police and Batori were riding, and both were killed instantly.

It is elementary law that one act may constitute several offenses, for example, under a municipal ordinance, a state statute and a federal statute.

The defendant contends that the gravamen of the offense here charged is the unlawful operation of the truck, and that the fact that more than one person was killed is immaterial so far as the offense is concerned. One difficulty with this view7 is that the defendant was not indicted solely for the unlawful operation of his truck. Of course that is an ■ element in the offense; but another essential element is the killing of “another” — a particular person. Another difficulty with this contention is the obvious fact that in the first case the defendant could not have been convicted of killing Batori, since Police was the victim named in that indictment; and in the instant case it is equally obvious that the defendant can not be convicted of killing Police, since Batori is the victim named. As Observed in the opinion in the case of State v. Rose, 89 Ohio St., 383, 106 N. E., 50, L. R. A. 1915 A, 256, “the usual test accepted by the text-writers on criminal law and procedure is this: If the defendant upon the first charge could have been convicfed of the offense in the second, then he has been in jeopardy.” And as further stated in the opinion in that case “the words ‘same offense’ mean same offense, not the same transaction, not the same acts, not the same circumstances or same situation.”

In the annotation in 172 A. L. R., 1062, the rule is summarized as follows:

“The majority of states hold that there are as many separate and distinct offenses as there are persons injured or killed by the unlawful act so that successive prosecutions may be instituted against the person who committed the unlawful act without violating the rule against double jeopardy.”

In the second paragraph of the syllabus in the case of State v. Billotto, 104 Ohio St., 13, 135 N. E., 285, this court held:

“Two indictments, each charging the unlawful killing of different human beings, though growing out of the same general transaction, quarrel or controversy, do not charge the same offense. They each charge a separate and distinct offense under the laws of Ohio.”

The defendant here seeks to distinguish that ease from the instant one by reason of the fact that in that case the killings resulted from the firing of several shots in instantaneous succession. The defendant in that case contended that the shots were so close together as to constitute only one offense and that therefore he could be tried in only one case although two persons were killed. This court agreed that there was only one transaction but held that each killing was a separate offense.

Likewise, in the third paragraph of the syllabus in the case of Duvall v. State, 111 Ohio St., 657, 146 N. E., 90, this court held that “a conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other.”

Under the circumstances the Court of Appeals was not in error in holding that the defendant was indicted for two separate offenses and that he has not been twice put in jeopardy for the same offense.

Judgment affirmed.

Zimmerman, Stewart, Middleton, Taft, Matthias and Hart, J J., concur.

Taft, J.,

concurring. Defendant’s plea in bar apparently alleges that the act of defendant, which the state claims to have been the proximate cause of the death of Batori, is the same act which was the proximate cause of the death of Police. In argument, the prosecutor conceded that defendant’s plea so alleges and that the state’s demurrer to the plea so admits.

Obviously, if that act was admittedly the proximate cause of the death of Police, the judgment of acquittal in the Police case would necessarily rest upon a determination that that act was a lawful act.

Also, it is obvious that, if that act was a lawful act, then the defendant cannot be convicted under this statute for killing Batori.

This raises the question as to whether the judgment of acquittal against the state and in favor of this defendant in the Police case bars the state from contending in the Batori case that that act was unlawful. If it does, that judgment would necessarily prevent the stale from convicting the defendant in the instant case.

It is well settled that, in civil actions, where a judgment in an action between two parties necessarily de1 ermines a question in dispute between those parties, one of the parties to the action in which such judgment was rendered may not in a subsequent action against the other party contend for a different determination of that same question. Ross, an Infant, v. Stricker, 153 Ohio St., 153, 91 N. E. (2d), 18; Hixon v. Ogg, 53 Ohio St., 361, 42 N. E., 32: Gibson v. Solomon, 136 Ohio St., 101, 23 N. E. (2d), 996, 125 A. L. R., 903; Norwood v. McDonald et al., Admrs., 142 Ohio St., 299, 52 N. E. (2d), 67; Conold v. Stern, 138 Ohio St., 352, 35 N. E. (2d), 133, 137 A. L. R., 1003; Quinn, Aud., v. State, ex rel. Leroy, 118 Ohio St., 48, 160 N. E., 453. It is said that the judgment acts as an estoppel with regard to the question so determined. There may be such an “estoppel by judgment” even where the so-called doctrine of res judicata cannot be invoked. Norwood v. McDonald, supra, at 306, 307; Conold v. Stern, supra, at 362, 363; Hixon v. Ogg, supra, at 367, 368.

In arguing the instant case, the position of defendant was well summarized by the statement in his brief that “the whole question here to be determined is whether or not there are one or two offenses committed. ’ ’

Section 12223-21, General Code, provides in part: “ * * * Errors not argued by brief may be disregarded, but the court, in its discretion, may consider and decide errors which are not assigned or specified * * *. All errors assigned shall be passed upon by the court * * *.”

Defendant did not argue in his brief or otherwise that the judgment of acquittal in favor of defendant and against the state in the Police case would estop the state from contending in this later case that the act of defendant, which admittedly was the proximate cause of Batori’s death, was an unlawful act. Also that question was not considered by either the Common Pleas Court or the Court of Appeals.

The interest of this court in that question had been suggested- by inquiries made at the hearing on the motions for leave to appeal and to dismiss the appeal as of right. That interest was emphasized by the rulings of this court dismissing the appeal of right and allowing the motion for leave to appeal.

Defendant may well have failed to argue that question because there are valid reasons for not applying the so-called doctrine of estoppel by judgment against the state in a criminal proceeding. Therefore, I concur in the apparent decision of the majority that they should not exercise their discretion to consider that question in the instant case, especially since this decision will not prevent a full consideration of that question if it is properly raised and argued in some later case. Fouts v. State, 8 Ohio St., 98, 123; Milwaukee Mechanics’ Ins. Co. v. Russell, 65 Ohio St., 230, 257, 62 N. E., 338, 56 L. R. A., 159; State v. Pugh, 43 Ohio St., 98, 123, 123, 1 N. E., 439.  