During the course of a fight at a residence, W hit H in the head with a frying pan. Upon his arrest, W was found to have a blood-alcohol level of 0.19 (exceeding the legal level of 0.10 needed for the finding of intoxication for a D.W.I.). H is alive when he is transported to the hospital but dies two days later. Ignorant of H's death, the district attorney charges W with public intoxication and assault. W pleads guilty to these charges. Still ignorant of H's death, the district attorney recommends the minimum sentence and the judge, also ignorant of H's demise, imposes this minimum sentence. The question is whether the district attorney can charge and prosecute W for homicide once he learns of H's death.
The answer is generally yes, the district attorney can charge W with the homicide of H without running afoul of double jeopardy. It has long been accepted that a defendant can be charged with and convicted of the homicide of a victim even though he was formerly convicted of an assault on that victim which constituted the same act as the homicide, if the victim dies of the injuries suffered in the assault after the defendant is convicted of the assault. See 2 Wharton's Criminal Law ยง 118 (15th ed. 1994).
The prohibition against double jeopardy is meant to protect defendants from being tried twice for the same offense. Under the test created by the U.S. Supreme Court, determining whether there are two offenses or only one depends upon whether each provision requires proof of an additional fact which the other does not. Brown v. Ohio, 432 U.S. 161 (1977). In one early case decided by the U.S. Supreme Court, a defendant was tried and convicted of assault and battery for hitting and kicking a victim. A few weeks after this conviction, the victim died from his injuries. At that point, the government charged the defendant with homicide and convicted him. In response to the defendant's appeal on double jeopardy grounds...