Manslaughter prosecution wherein defendant filed a plea of former jeopardy. The Superior Court, Richards, P. J., held that acquittal of defendant by Justice of Peace of statutory misdemeanor for negligent operation of a motor vehicle did not, on theory of double jeopardy, preclude subsequent prosecution of defendant under indictment for manslaughter through negligent operation of motor vehicle, even though one of the specific charges of negligence in indictment was act of which defendant had been acquitted, since the offenses were separate and distinct.
Plea in bar dismissed.
David P. Buckson, Middletown, for defendant.
Stephen E. Hamilton, Jr., Deputy Atty. Gen., for the State.
RICHARDS, President Judge.
The defendant was indicted by the Grand Jury of New Castle County, at the November Term 1952, for manslaughter by operating his automobile along a certain public highway in Pencader Hundred, on the eighth day of April, 1952, in a reckless, negligent, careless and unlawful manner and thereby causing the death of one John Williard Cribb.
The indictment consists of eleven specific charges
of negligence, one of which being designated as Count F charges: that [48
Del. 167] he was then and there operating said motor vehicle in violation of
Section 92, Chapter 165 as amended, Revised Code of Delaware (1935), and the
laws of the State of Delaware, in that he drove to the left side of the center
line of the Highway in overtaking and passing another motor vehicle proceeding
in the same direction when such left side was not clearly visible and free of
oncoming traffic for a sufficient distance ahead of him to permit such
overtaking and passing to be made in safety.
The defendant sets out in his plea in bar that on the twenty-third day of October, 1952, he was charged before Thomas Holcomb, II, a Justice of the Peace, in and for New Castle County with driving an automobile on the State Highway on April 8, 1952, in violation of Section 92 of the Motor Vehicle Law, 21 Del.C. § 4133, being the same charge which is contained in Count F of indictment as above quoted; that at the hearing on said charge before the said Justice of the Peace on the said twenty-third day of October, he was found not guilty.
The defendant contends that he is the same person named in the charge of which he was found not guilty by the said Justice of the Peace and that the offense for which he was charged, tried and found not guilty by the said Justice of the Peace is the same offense for which he is charged in this Court by Count F of the indictment. He, therefore, contends that prosecution under the indictment pending in this Court constitutes double jeopardy in violation of Article 1, Section 8, of the State Constitution, Del.C.Ann.
The plea of former jeopardy does not go to the merits of the offense, nor does it question any criminal act of the defendant. It is in the nature of a collateral civil proceeding to determine what action was taken by the court at some former time. 114 American Jurisprudence, p. 957, Sec. 278.
In order to determine whether two indictments charge the same offense, it is
necessary to ascertain whether the facts required to convict on the second prosecution would necessarily have convicted on the first prosecution.
[48 Del. 168] Article 1, Section 8, of the Constitution, which provides that ‘ no person shall be for the same offense twice put in jeopardy of life or limb’, ...