Appeal from Circuit Court, Clatsop County. Thomas E. Edison, Judge.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Stephen S. Walker, Portland, argued the cause and filed the brief for respondent.
Schwab, Chief Judge, and Fort and Thornton, Judges.
On September 13, 1972: (a) defendant was involved in an automobile accident; (b) an investigating officer issued defendant a traffic citation for reckless driving in violation of ORS 483.992 (1),*fn1 a misdemeanor;
(c) the officer filed a copy of the citation in district court pursuant to ORS 484.180 (1);*fn2 and (d) a passenger riding in one of the other vehicles involved in the accident died at the hospital. On October 25, 1972, defendant was indicted for negligent homicide in violation of ORS 163.145,*fn3 a felony, based on the events that had occurred on September 13. On January 12, 1973, defendant appeared in district court on the reckless driving charge. The district attorney and defense counsel presented a joint stipulation that "the State had sufficient evidence that, if believed by the Court would, without presentation by the defendant, warrant a finding by the Court that the defendant was Guilty of the [reckless driving] charge." Based on this stipulation, the district court found defendant guilty as charged. On January 18, 1973, defendant moved in circuit court to dismiss the negligent homicide indictment on the grounds of double jeopardy. The circuit court granted defendant's motion. The state appeals.
Interpreting the double jeopardy provision of the Oregon Constitution, State v. Brown, 262 Or 442, 457-58, 497 P2d 1191 (1972), holds that:
"* * * [U]nder Article I, Section 12, of our constitution, a second prosecution is for the 'same offense' and is prohibited if (1) the charges arise out of the same act or transaction, and (2) the charges could have been tried in the same court, and (3) the prosecutor knew or reasonably should have known of the facts relevant to the second charge at the time of the original prosecution."
Based on these criteria, the circuit court's decision must be affirmed.
The reckless driving charge and the negligent homicide charge arose from the same act or transaction. See, State v. Sanchez, 14 Or App 234, 511 P2d 1231, Sup Ct review denied (1973), and State v. Rook, 14 Or App 211, 511 P2d 1245, Sup Ct review denied (1973). Both were based on the act of operating a motor vehicle in a certain manner. These two charges arising from a single act are indistinguishable from the Brown facts, that is, the act of carrying a concealed pistol simultaneously constituting the misdemeanor of carrying a concealed weapon and the felony of being a convicted person in possession of a firearm.
Whether the two charges in this case could have been tried in the same court requires more extensive consideration. In support of its conclusion in Brown that the two charges in that case could have been tried in the same court, the ...