concurring in the result.
I concur in the result. Point III, as it appears in the majority opinion, does not, in my opinion, reflect the prevailing rule of law.
The dismissal of the misdemeanor count, driving under the influence of intoxicating liquor, and the subsequent jury verdict of guilty on the counts of inflicting bodily injury by operating an automobile while under the influence of intoxicating liquor, both occurred during the same prosecution. In my judgment, the problem of former jeopardy would not arise until a later and distinct prosecution. The problem in this case is essentially one of inconsistent verdicts in a single trial. Thompson v. State, Ind. , 290 N.E.2d 724 (1972); People v. Tideman, 57 Cal.2d 574, 370 P.2d 1007, 21 Cal. Rptr. 207 (1962).
The dismissal of the charge of driving under the influence, which must operate as an acquittal of that charge, is inconsistent with a verdict of guilty of the charge of causing bodily injury while driving under the influence. See Annotation: Inconsistency of Criminal Verdict as Between Different Counts of Indictment or Information, 18 A.L.R.3d 259.
The dismissal of the driving under the influence charge after jeopardy had attached could, in my view, preclude a subsequent trial for the charge of causing injury while driving under the influence, but the dismissal of the one charge does not vitiate a conviction of the other charge in the course of the same trial.