dissenting.
In this case the accident which resulted in this prosecution occurred December 20, 1969, at MiltonFreewater, Oregon. The victim died the same day. Thus, all “acts” or “offenses” upon which criminal proceedings could be based were immediately available to the district attorney for him to determine what charge or charges he should bring. He chose to charge the defendant with “driving while under the influence of intoxicating liquor.” Defendant was convicted and was sentenced to 60 days in jail. Almost 10 months after the accident and death the district attorney presented to, and obtained from, the grand jury an indictment charging defendant with negligent homicide in that defendant
“* * * while under the influence of intoxicating liquor * * * drove a 1969 Plymouth * * * in a negligent manner * * *;
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“as a result of which driving said vehicle struck a vehicle being driven by Lena M. Westervelt * * * causing said person * * * to die.”
At the time of argument on the plea of double jeopardy, the district attorney stipulated:
“* * * We would at this time stipulate that the defendant has been charged and convicted of driving while under the influence and that the driving in question was the same driving which culminated in a collision with Mrs. Westervelt’s car in which it is alleged resulted in Mrs. Westervelt’s death. * * *”
Early in Oregon’s jurisprudence, State of Oregon v. McCormack, 8 Or 236 (1880), our Supreme Court, implementing the double jeopardy principle, announced the rule that the prosecutor should not be allowed to carve up what is essentially one incident *446into several prosecutions. There defendant stole a horse. He was first convicted of larceny as to the saddle and bridle. Subsequently, he was indicted for larceny of the horse. The court barred the second prosecution and said:
“This is a case where the appellant is charged with the larceny of a horse, saddle, and bridle, taken at the same time and place, and from the same person, and in our opinion the whole transaction constitutes but one crime, and but one indictment can be sustained for such taking, and the prosecution having seen proper to split up the transaction into two offenses by causing two indictments to be preferred against such person for that which is but one crime, a conviction or acquittal on one may be successfully pleaded as a bar to a subsequent prosecution on the other. In 1 Bishop’s Criminal Law, sec. 1060, it is said, ‘that although when a man has done a criminal thing the prosecutor may carve an offense out of the transaction as he can, yet, he must cut only once.’ The same author, in referring to offenses embraced in the same transaction or included one within the other, says: ‘Some apparent authority, therefore, English and American, that a jeopardy for the less is no bar to an indictment for the greater, we must regard as not being good law, while the doctrine that it is a bar is best sustained by the adjudications, as well as by reason.’ (1 Bishop’s Crim. Law, sec. 1057.)” 8 Or at 239.
It is still true that “he can carve only once” but the definition of the term “same offence”① has required further analysis. In State v. Miller, 5 Or App 501, 484 P2d 1132, Sup Ct review denied (1971), after discussion of alternative tests, we applied Oregon’s “same evidence” definition of “same offence” and *447concluded that defendant did not have a valid former jeopardy plea. The test applied was this:
“ ‘ “* * * A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal, or conviction, under either statute, does not exempt the defendant from prosecution and punishment under the other.” * * *’
££S* # * # *
“ ‘Thus, to constitute a valid plea of former jeopardy, two distinct factors at least must be shown to concur — the same act and the same statutory offense.’ * * *” 5 Or App at 503.
Merely applying the same standard to the present situation would lead us to the identical conclusion— no former jeopardy. Conviction in this case of negligent vehicular homicide would require proof of different elements② than those necessary for a conviction of drunk driving. Defendant, however, argues that the double jeopardy guarantee prohibits his prosecution for negligent homicide because the offense of driving under the influence of intoxicating liquor, of which he has already been convicted, is included within the negligent homicide indictment. Since a defendant may be found guilty of any crime the commission of which is necessarily included in the one charged in the indictment,③ defendant contends that a prosecution for negligent homicide would place him in jeopardy a second time for the “same offence.” The ultimate question to be answered, then, is a two-part one: (1) is drunk driving an included offense of negligent homi*448cide in this case; and, if so, (2) does the Double Jeopardy Clause apply?④
The state stipulated that the same drunken driving for which defendant was convicted was that which resulted in the death. The prosecutor also said
“* * * [w]e want to make it clear that the State is saying at this time that all the State can prove or will prove is that the defendant was under the influence and at the time he was under the influence committed an act of simple negligence. * * * after the State’s case has been completed, it will have proved under the influence and it will have proved simple negligence, and that’s all. * * *”
The act of driving a motor vehicle while under the influence of intoxicating liquor, which is charged in this indictment and which is proscribed by ORS 483.992 (2), would thus be a necessarily included offense of the negligent homicide charged here. The majority suggests that the allegation of driving under the influence is “the inclusion of a superfluous, evidentiary allegation.” Here the majority’s conclusion, however, is negated, since the state not only alleges the offense of drunk driving but also affirmatively avers that proof of the intoxication is an essential element of its proof of the crime of negligent homicide. In other words, this case squarely complies with the “required evidence” test to which, the majority states, Oregon subscribes. Indeed, absent the previous conviction for drunk driving, had the case proceeded to trial, the defendant would have been entitled, upon request, to an instruction, submitting to the jury the lesser included offense of operating a motor vehicle while under the influence of intoxicating liquor.
*449This case is to be distinguished from those cases where a virtual fraud is perpetrated upon the court when conviction of a minor traffic offense is sought to be used to bar a prosecution for negligent homicide.⑤ The majority seems to attempt to downgrade the offense of drunk driving, implying that it is not a very serious offense, suggesting it is a misdemeanor and contained in the motor vehicle code, whereas negligent homicide is classified as “a serious crime.” The maximum penalty for drunk driving is $1,000 fine and one year’s confinement. The penalty for negligent homicide, though more severe, is comparable. The maximum is $2,500 fine and three years’ confinement.
The United States Supreme Court long ago recognized the principle that a person convicted of a certain crime and punished cannot subsequently be prosecuted for an offense which was included in and a part of the original crime. Hans Nielsen, Petitioner, 131 US 176, 9 S Ct 672, 33 L Ed 118 (1889). This rule of law set down in Nielsen was most recently approved by the Supreme Court in North Carolina v. Pearce, 395 US 711, 89 S Ct 2072, 23 L Ed 2d 656 (1969), and it is applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 US 784, 89 S Ct 2056, 23 L Ed 2d 707 (1969). Had defendant been first convicted of negligent homicide upon the indictment here involved, the state could not have prosecuted him thereafter for the included offense of drunk driving. Should a different result be permitted because the state has chosen to reverse the order of its prosecutions?
In discussing the general subject involved in
*450Nielsen the court cited as examples several cases, one of which was The State v. Cooper, 13 NJL 361, 25 Am Dec 490 (1833). In that case the New Jersey Supreme Court held that defendant, having been tried and convicted of arson, could not subsequently be prosecuted for murder via the same act of arson in light of the constitutional principle of double jeopardy. Though written 138 years ago the opinion is no less profound and its reasoning no less applicable to the present circumstances because of that fact:
“The defendant has been convicted of the crime of arson. He has plead that conviction in bar of the indictment for murder. What effect shall that plea have upon this prosecution? If I am right in supposing that the defendant cannot be convicted and punished for two distinct felonies, growing out of the same identical act, and where one is a necessary ingredient in the other, and the state has selected and prosecuted one to conviction, it appears to present a proper case to interpose the benign principle, that a man shall not be twice put in jeopardy for the same cause, in favor of the life of the defendant.
# * * *
“* * * Here is no defect in the first indictment. It is a case where the state has thought proper to prosecute the offence in its mildest form, and it is better that the residue of the offence go unpunished, than by sustaining a second indictment to sanction a practice which might be rendered an instrument of oppression to the citizen.” 13 NJL at 375-76.
The Supreme Court of the United States most recently ruled upon a double jeopardy issue similar to the present one last year in Waller v. Florida, 397 US 387, 90 S Ct 1184, 25 L Ed 2d 435 (1970). There defendant was convicted in a municipal court of the, *451violation of two city ordinances. He was later tried and convicted in a state court upon an information charging grand larceny, admittedly based upon the same acts of defendant involved in the violation of the two city ordinances. The United States Supreme Court vacated the grand larceny conviction on the ground that it violated the Fifth and Fourteenth Amendments to the United States Constitution. In his opinion expressing the unanimous view of the court, Mr. Chief Justice Burger, though concentrating on the issue of dual versus single sovereignty, stated that the court was acting upon the statement of the Florida District Court of Appeal that the second trial
“® * * Vas based on the same acts of the appellant as were involved in the violation of the two city ordinances’ and on the assumption that the ordinance violations were included offenses of the felony charge. * * *” (Emphasis supplied.) 397 US at 390.
In light of the Waller, Pearce and Nielsen decisions the prosecution of defendant for negligent homicide upon this particular indictment will place him twice in jeopardy for the “same offence” and a sentence upon conviction will subject him to punishment already administered for the misdemeanor of driving while under the influence of intoxicating liquor, all in violation of both the Constitution of the United States and the Oregon Constitution.⑥ The judgment of the circuit court dismissing the negligent homicide indictment should be affirmed.
“* * * nor shall any person be subject ior the same of-fence to be twice put in jeopardy of life or limb * * U. S. Const. amend. V.
Elements of negligent homicide: (1) death within a year; (2) caused by driving of defendant; (3) the driving being in a grossly negligent manner.
ORS 136.660.
In State v. Miller, supra, we iound specifically that there was no issue of lesser included offense.
In People v. Herbert, 6 Cal2d 541, 58 P2d 909 (1936), for example, defendant pleaded guilty and was fined $10.
It is pointed out that under either the “same transaction” test or the Hawaii test of the term “same offence,” both set out in State v. Miller, supra, the same result would probably be reached.