dissenting.
I respectfully dissent for the following reasons. The reliance by the court upon Jeppesen v. State, 154 Neb. 765, 49 N. W. 2d 611, a double jeopardy case, is wholly *10misplaced and, in my judgment, has no bearing upon the question of the propriety of consecutive sentences in this case. First: The holding in Jeppesen is probably dictum. Second: If it was not, it was nonetheless wrongly decided. Third: The defendant’s culpability in this case lies in a single, unlawful act and ought to be judged in that way, and therefore imposition of a maximum sentence which is twice as long as that provided by law for the crime involved is unjustified.
In Jeppesen v. State, supra, the defendant was charged with manslaughter arising out of his alleged unlawful operation of a motor vehicle. In the accident two people in the second car were killed. Defendant was tried for the death of one and acquitted by the jury. He was then charged with the death of the other and convicted. On appeal in the second case this court overturned the conviction and dismissed the cause because the evidence was insufficient to show any unlawful act on the part of the defendant. The court nonetheless went on to hold that the prior acquittal did not bar the second prosecution. The acquittal by the jury in the first case and the dismissal by the Supreme Court in the second case were both on the same ground — no unlawful act shown. The Jeppesen dictum was wrong in failing to apply the principle of collateral estoppel by reason of the acquittal in the first case.
Ashe v. Swenson, 397 U. S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469, is in point. There the defendant had been acquitted of a charge of robbery. The defense was alibi. The robbery in question was of six poker players at a single table and only one transaction was involved. The United States Supreme Court held that the acquittal of the defendant on the charge of robbery of one of the gamblers prohibited, under principles of former jeopardy, subsequent prosecution for robbery of the others. The reason was collateral estoppel. Only a single transaction was involved and only one issue, that is, the identity of the perpetrator. The first acquittal *11determined that issue. This is the principle that should have been applied in Jeppesen.
We ought not, in my judgment, give inadvertent approval to an erroneous application of former jeopardy in a case where the question is the propriety of consecutive sentences.
Since here the defendant was convicted in both cases at the same time and did not suffer two trials, jeopardy is not involved. See State v. Huffman, 186 Neb. 809, 186 N. W. 2d 715. In that case the charges were forgery and the uttering of forged instruments. Consecutive sentences had been imposed. We set one of the sentences aside as surplusage.
In the present case I do not believe consecutive sentences are justified because a single culpable act is involved, that is, the driving while intoxicated and in a highly dangerous manner. Such conduct is, of course, highly reprehensible and atrocious, but I cannot believe that if 10 people were killed consecutive sentences aggregating 32% to 100 years would be justified, yet this is the principle which the court in this case approves. Conduct such as here involved, reprehensible as it is, is not to be viewed in the same light as a case where a person pulls the trigger 10 times and kills or wounds as many persons.
Lastly I believe the sentence is disproportionate to other sentences imposed in similar cases.
McCown, J., joins in this dissent.