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Martinez v. People4/26/1971
People, 64 Colo. 281, 170 P. 962 (1918). (Emphasis in Johnson.)
Applying this "same evidence" test to the case before us, we are unable to conclude that careless driving and driving under the influence , constitute "the same or similar offenses" under C.R.S. 1963, 13-5-6(3). The mere fact that the defendant was driving in a careless fashion, while certainly a factor, was not sufficient, without more, to convict her of driving under the influence. Nor was the fact that the alcoholic content in her body was above a certain level sufficient to convict the defendant of the charge of careless driving. Although, again, the alcohol level could well have been a factor in the conviction.
In another recent Supreme Court decision, Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) a strongly worded concurring opinion by Mr. Justice Brennan (with Justices Douglas and Marshall in agreement) urged that the "same evidence" test be replaced by a "same transaction" or "same episode" test: "In my view, the Double Jeopardy Clause requires the prosecution, except in most limited circumstances, to join at one trial all the charges against a defendant which grow out of a single criminal act, occurrence, episode, or transaction." Id. (Emphasis added, footnotes omitted.)
Ashe involved a robbery, perpetrated by three or more persons, on six men who were playing poker. The defendant, Ashe, was tried and acquitted of the robbery of one of the victims, and then tried and convicted of the robbery of another. In reversing this conviction, Mr. Justice White, writing for a deeply divided court, appeared to give tacit approval to the "same evidence" test
although basing the reversal on "collateral estoppel" grounds:
"The ultimate question to be determined, then, in the light of Benton v. Maryland, supra, is whether this established rule of federal law [collateral estoppel] is embodied in the Fifth Amendment guarantee against double jeopardy. We do not hesitate to hold that it is. For whatever else that constitutional guarantee may embrace, North Carolina v. Pearce, 395 U.S. 711, 717, it surely protects a man who has been acquitted from having to 'run the gantlet' a second time. Green v. United States, 355 U.S. 184, 190.
"The question is not whether Missouri could validly charge the petitioner with six separate offenses for the robbery of the six poker players. It is not whether he could have received a total of six punishments if he had been convicted in a single trial of robbing the six victims. It is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again." Ashe v. Swenson, supra. (Footnotes omitted.)
The judgment of the district court upholding the conviction is affirmed.
Disposition
Affirmed.
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