
    SANTOSUSSO v CITY OF CLEVELAND.
    Ohio Appeals, 8th Dist., Cuyahoga Co
    No. 9419.
    Decided Nov. 19, 1928
    A L Kriesberg, Cleveland, for Santosusso
    C F Shuler, Cleveland; for City of Cleveland;
   SULLIVAN, PJ.

The error urged is that the court should have compelled the prosecution to elect upon which offense it would go to trial. This was not done and inasmuch as two separate and independent offenses are involved it is clear that the demand for such an election ought to have been sustained and that there ought to have been two affidavits and two trials, or else but one trial and only as to one offense. The offenses necessarily grow out of one and the same transaction and it appears like a double assessment of a criminal penalty to sentence the plaintiff in error as was done for both offenses under one affidavit and one trial.

We think there was prejudicial error in this respect but it is our judgment that this court has the power to correct the same and we. hereby do so by reversing the judgment below as to careless driving and .affirming the judgment and. sentence below as to the offense of driving while intoxicated, and entries will be made accordingly.

Vickery and Levine JJ, concur.  