Opinion
No. 4823.
Argued October 4, 1960.
Decided October 28, 1960.
1. A plea of former jeopardy will not be sustained unless it appears that the offense previously charged was the same in law and in fact as that presently charged.
2. Hence where the respondent was acquitted of a charge which consisted in law and in fact of drunkenness in a public place (RSA 570:14) a subsequent charge consisting in law and in fact of rude and disorderly conduct in a public place (RSA 570:1) did not constitute double jeopardy since the element of drunkenness is not essential to sustain the second charge.
TRANSFER, to the Supreme Court of questions of law by the Manchester municipal court under RSA 502:24. The complaint charged the defendant with disorderly conduct in a cafeteria used by the public. The defendant moved to dismiss on the ground of former jeopardy.
The defendant was originally charged with being drunk and intoxicated "to the disturbance of the peace . . . in a certain restaurant resorted to and being used by the public." To this charge the defendant had pleaded not guilty and after hearing had been found not guilty. Immediately thereafter the State filed a second complaint charging the defendant with disorderly conduct.
The reserved case states that "the actions of the defendant alleged to be disorderly conduct are the same actions as those about which testimony was introduced at the trial of the prior charge to prove the allegation, `to the disturbance of the peace,' and testimony tending to establish such conduct was given in detail at the prior trial."
The question of law presented by defendant's motion to dismiss was reserved and transferred by Chretien, justice of the municipal court.
Louis C. Wyman, Attorney General and Irma A. Matthews, Law Assistant (Mrs. Matthews orally), for the State.
Emile R. Bussiere (by brief and orally), for the defendant.
The defendant was charged in the first instance with being drunk in a public place to the disturbance of the peace. This would be a violation of RSA 570:14 which provides: "DRUNKENNESS. No person shall be drunk in a street or other public place, nor in a private building or place, disturbing his family, or to the disturbance of the peace." Upon this charge he was found not guilty. The second complaint was thereupon filed charging the defendant with disorderly conduct in a public place a violation of RSA 570:1 which provides: "BRAWLS, ETC. No person shall make a brawl, nor, in any street or other public place, be guilty of rude, indecent, or disorderly conduct, or insult or wantonly impede a person passing therein, or play therein at any game." State v. Kennison, 55 N.H. 242.
The defendant contends that since the actions and conduct of the defendant alleged to have been disorderly conduct are the same as those about which testimony was introduced at the trial of the prior complaint charging that the defendant was drunk in a public place his plea of former jeopardy constitutes a bar to the pending complaint. N.H. Const., Pt. I, Art. 16th.
This argument overlooks the fact that in order to constitute former jeopardy "It must appear that the offense previously charged was the `same in law and in fact.'" State v. Smith, 98 N.H. 149, and cases cited.
In this case the offense first charged, of which the defendant was acquitted, consisted in law and in fact of drunkenness in a public place. The offense now charged consists in law and in fact of rude and disorderly conduct in a public place. While the evidence required to establish each offense might show essentially the same conduct on the part of the defendant there is a distinguishing element, in that under the pending complaint, it is not necessary to show that the defendant was drunk.
The offense is established if it is shown that the defendant was "loud and boisterous" to the extent that his rude conduct led to his ejection by a police officer, as alleged by the complaint. The facts now charged, without evidence of intoxication would not have sustained a conviction under the former complaint. Hence former jeopardy is not a defense. State v. Smith, supra.
Remanded.
All concurred.