SEPARATE OPINION
Achor, J.Appellant has filed a petition for rehearing in which he cites certain inaccuracies in the recital of facts stated in my previous opinion. Accordingly the *578opinion is withdrawn and the following opinion is now submitted.
In this case the appellant was charged and convicted in Sullivan County with operating a motor vehicle on a public highway in that county while under the influence of intoxicating liquor. [Acts 1939, ch. 48, §52, p. 289 (being §47-2001 (b), Burns’ 1952 Repl.)]. To this charge appellant filed a plea of double jeopardy. Appellant bases his appeal on an adverse ruling to this plea.
As grounds for his plea, appellant asserts that he had previously been tried and found not guilty of the same offense in Vigo County. Specifically appellant asserts that the offense with which he is now charged was a single and continuing offense, based upon the same evidence, for which he had previously been placed in jeopardy.
I concur with other members of the court upon the proposition that under our statute as presently written the continuous operation of a motor vehicle in two or more counties while under the influence of intoxicating liquor constitutes a single offense, subject to the rule of double jeopardy, and that the venue of the action may be placed in any county in which the alleged unlawful act occurs.
However, in my opinion, the acceptance of the above proposition of law does not, under the facts here presented, require a reversal of the ruling of the trial court.
The question which this court must determine is whether, under the facts before us, the offense of operating a motor vehicle in Sullivan county, with which appellant is presently charged, was a continuation of the same offense with which he was charged, tried and found not guilty in Vigo County. In determining this question, it must be recognized that the mere continuous operation of the automobile in both Vigo and Sulli*579van counties did not constitute a criminal offense. The offense was made a crime against the state because of the intoxication of the driver at the time and place or places of such operation.
As heretofore stated, in the prior action appellant was charged with operating a motor vehicle while under the influence of intoxicating liquor in Vigo county. In that case (as in this) there was evidence that appellant had drunk a small amount of liquor at his office in Terre Haute before driving to his home in Sullivan and there was evidence that he was intoxicated upon reaching Sullivan approximately one hour thereafter. However, there was no evidence that appellant was under the influence of intoxicating liquor while in Vigo county to such a degree that it would in anywise affect the operation of his motor vehicle. Consequently, there was no evidence in support of either the theory or the fact of a continuous unlawful operation of the automobile in both Vigo and Sullivan counties, as is here contended by appellant.
The rule which the courts of this state have followed and by which we are governed here was stated in Durke v. State (1932), 204 Ind. 370, 378, 183 N. E. 97, as follows:
“ ‘. . . “identity of offense” test, which is that the second charge must be for the same identical act and crime as that charged by the first affidavit or indictment upon which defendant had been placed in jeopardy ... or stated another way: “Would the same evidence be necessary to secure a conviction in the pending, as in the former prosecution,”
In further explanation of the test this court, in the case of State v. Reed (1907), 168 Ind. 588, 590-591, 81 N. E. 571, stated:
*580“When the facts necessary to convict upon a second prosecution would not necessarily have convicted upon the first prosecution, then the first, . . . will not be a bar to a second prosecution. (Cases cited.) In 1 Bishop, Crim. Law (8th ed.), §§ 1052, 1053, it is said on this subject: ‘§1052 . . . The test is, whether, if what is set out in the second indictment had been proved under the first, there could have been a conviction; when there could, the second cannot be maintained; when there could not, it can be. And — §1053. (1) The case of variance is merely illustrative. In other cases also, this test is equally applicable and nearly universal. Thus — (2) Wrong County. If the acquittal is by reason of the indictment’s being brought in the wrong county, it will not bar fresh proceedings in the right one. . . .”
Here the facts set out in the second charge could not have resulted in the conviction in the first. Furthermore, it appears that the acquittal in Vigo county was by reason of the action being brought in the wrong county. Under such circumstances trial and acquittal in the wrong county “will not bar fresh proceedings in the right one.” State v. Reed, supra.
In support of this conclusion, there is testimony of an expert witness in the present case to the effect that basically it takes 30 to 90 minutes for the body to absorb a sufficient amount of alcohol to produce intoxication. This evidence substantiates the fact that the appellant was not intoxicated while operating his automobile in Vigo county as charged in the prior case, but that by the normal process of the absorption of alcohol in his body appellant became intoxicated after he had entered into Sullivan county where he was arrested. Under such circumstances it cannot be said that appellant’s operation of his automobile in Vigo and Sullivan counties was a continuous unlawful act or that he was twice tried for the same offense.
*581Where, as in this case, double jeopardy is the error relied upon for reversal of the decision of the trial court, the defendant had the duty of going forward with proof to sustain his defense. Ford v. State (1951), 229 Ind. 516, 98 N. E. 2d 655. Cert. denied 342 U. S. 873, 72 S. Ct. 116, 96 L. Ed. 656. Yet appellant presented no evidence to contradict the presumption raised by the above evidence.
Where, as in this case, the determination thereof rests upon the evidence before the court and the decision of the court is adverse to the party charged with the duty of going forward with the evidence, this court on appeal will reverse the trial court only in event the evidence requires a conclusion contrary to that reached by the trial court. Wilson, Admx. v. Rollings (1938), 214 Ind. 155, 14 N. E. 2d 905. The facts presented to us do not require such a contrary conclusion. Therefore, it is the duty of this court to sustain the decision of the trial court presented to us for review.
SEPARATE OPINION
Arterburn, J.Appellant was tried and found not guilty of operating a motor vehicle on a public highway in Vigo County while under the influence of intoxicating liquor. He was also arrested on a like charge in Sullivan County on the same day shortly after the accident in Vigo County which was the instigating incident which caused his arrest in that county. After the acquittal in Vigo County the appellant was tried in Sullivan County and entered a plea of double jeopardy, contending that the offense with which he was charged in Sullivan County was a single and continuing offense based upon the same evidence which occurred in Vigo County. The court, upon the hearing of this plea, found *582against appellant. The appellant was tried and convicted in Sullivan County. Prom this judgment in Sullivan County he appeals.
A trial and acquittal of a crime in one county of the state is normally not a bar to a prosecution in another county for a like offense when the proper venue is proved. There could be a number of reasons for the acquittal of appellant in Vigo County in this case. One of those reasons might have been a failure to prove that he was intoxicated in Vigo County, yet the evidence could show that by the time he reached Sullivan County he had become intoxicated. The fact that appellant was not intoxicated to a degree necessary for a conviction in Vigo County does not preclude the fact that he could consume more alcohol by the time he reached Sullivan County. In other words, the evidence may show that the venue has been laid in the wrong county and as a result the appellant has been charged in the wrong county. An acquittal in such a case should not bar a prosecution in an adjoining or other county.
In State v. Reed (1907), 168 Ind. 588, 590, 81 N. E. 571 it is said:
“When the facts necessary to convict upon a second prosecution would not necessarily have convicted upon the first prosecution, then the first, if dismissed, after jeopardy has attached, which, as we have said, is equivalent to an acquittal (Boswell v. State [1887], 111 Ind. 47, 49), will not be a bar to a second prosecution. (Cases cited.)”
This case quotes from 1 Bishop, Crim. Law (8th ed.), §§1052, 1053, as follows:
“ ‘§1052. . . . The test is whether, if what is set out in the second indictment had been proved under the first, there could have been a conviction; when there could, the second cannot be maintained; when there could not, it can be. And — §1053. (1) *583The case of variance is merely illustrative. In other cases also, this test is equally applicable and nearly universal. Thus — (2) Wrong County. If the acquittal is by reason of the indictment’s being brought in the wrong county, it will not bar fresh proceedings in the right one. . . .’ ”
It is argued that the “identity of offense” is the test here; or stated another way: “would the same evidence be necessary to secure a conviction in the pending, as in the former conviction?” It appears plainly here that the same crime is not charged, since one was allegéd to have occurred in Vigo County and the other in Sullivan County. Further, the evidence as to the intoxicated condition of the appellant in the case tried in Vigo County would have to pertain to the acts of appellant while driving in Vigo County. Such evidence by itself would not sustain a conviction in Sullivan County. The venue stated in each case being different, would have to be proved as alleged.
The principle of a “continuous offense” has no application here for the simple reason that there is no previous conviction of an offense which is continuous. It is a case in which it has been found that no offense was committed in Vigo County and therefore there could be no continuation, or “continuous offense” which ran into Sullivan County. There could be no continuation of an “offense” into Sullivan County if there was no offense committed in Vigo County.
In Barker v. State (1918), 188 Ind. 263, 274, 120 N. E. 593, it is said:
“... It is equally well settled that where the facts necessary to a conviction upon a second prosecution would not necessarily have convicted upon the first prosecution, then such acquittal would not be a bar to a second prosecution.”
*584In 8 I. L. E., Criminal Law, §74, p. 169, it is said:
“. . . However, a person who, during the course of a fight, assaults several persons, may be successively prosecuted for assaulting each of his victims, without being placed in double jeopardy.” Greenwood v. The State (1878), 64 Ind. 250.
We judicially know that a person’s condition as to intoxication may vary from time to time, depending upon the amount of alcohol consumed or not consumed. The fact that he is acquitted at one time should not be a bar to a prosecution at a later time and place simply because he was driving the same car or on the same trip.
Were the law otherwise, a driver could start out drinking intoxicants as he drove across the State of Indiana, and if he happened to be apprehended and tried for such an offense when not quite “under” and acquitted, then such an acquittal would be a bar to any subsequent prosecution in any other county he passed through, regardless of how much alcohol he consumed in his travel and how flagrant the offense became. The record shows that witnesses Skinner and Woodward testified when called as witnesses for the State on the plea in bar that they would have additional evidence to present in the trial in Sullivan which they were not allowed to present in the trial at Terre Haute. The fact is, all the evidence of acts that took place in Sullivan County subsequent to the time of the events in Vigo County would have very little relationship to the appellant’s condition in Vigo County at a point of twelve miles or so from where appellant was involved in an accident.
The special judge who tried the case in Vigo County stated in the hearing on the plea in bar that:
*585“The State did not introduce evidence of an eye witness that Boyle was driving while intoxicated in Vigo County, but did offer evidence as to his condition while driving an automobile in Sullivan County. . . ”
“I admitted this evidence into record on the theory that it might tend to throw some light on his condition at the time he was charged with operating a motor vehicle while under the influence of intoxicating liquor in Vigo County an hour previously, it was my conclusion there was not sufficient evidence beyond a reasonable doubt that he was guilty of the charge; . . .”
The trial court in Sullivan County hearing the plea in bar in this case had sufficient evidence to determine that the venue of the offense charged was really in Sullivan County and was not proved to be in Vigo County, and for that reason the defendant was acquitted in Vigo County. We have no right on appeal to weigh this evidence. So long as there is evidence to support the finding of the trial court in denying the plea in bar, namely, that the appellant was not tried on the offense that occurred in Sullivan County, we may not reverse.
I feel that the judgment of conviction in this case should be affirmed.