The opinion
H. Brown, J.,
dissenting. Although the majority correctly sets forth the applicable law on double jeopardy, I believe that it reaches the *93 wrong result in this ease. Therefore, I must respectfully dissent.
It is undisputed that misdemeanor assault is a lesser included offense of felony assault. I agree with the majority’s conclusion that the two offenses are indistinguishable under the Bbckburger standard and are the same for double jeopardy purposes. Where I part company with the majority, however, is in the attempt to fit the present case under the exception to the Bbckburger rule.
The exception provides that double jeopardy may be avoided and a second, more serious charge may be pursued when “the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence.” Brown v. Ohio (1977), 432 U.S. 161, 169 , at fn. 7. Although this exception is noted in the long line of cases cited by the majority, only two of those cases, Diaz v. United States (1912), 223 U.S. 442 , and State v. Thomas (1980), 61 Ohio St. 2d 254 , 15 O.O. 3d 262, 400 N.E. 2d 897 , actually find the exception applicable to the facts of the particular case.
In both Diaz and Thomas it was not possible to bring the more serious charge at the outset because the additional facts necessary to sustain that charge had not yet occurred. In Diaz, supra, the victim died of injuries sustained in the criminal incident after the defendant had been charged with assault and battery. Id. at 448-449 . Likewise in Thomas, supra, the victim died from injuries sustained during the course of a robbery after the defendant had been tried and sentenced for robbery.
In the present case, however, all the facts necessary to sustain the felony assault charge (the serious injury to Ochs) had already occurred when Tolbert was charged with misdemeanor assault. Although conceding this distinction, the majority fails to recognize its significance. Instead, the majority merely concludes that the seriousness of the injury to Ochs was not discoverable despite the exercise of due diligence.
Due diligence, however, in a criminal investigation requires that the police and the prosecution ascertain the facts of the crime, as they currently exist, before proceeding with charges against the accused. The extent of injury to Ochs was part of the relevant facts of the case against Tolbert. Nevertheless, the prosecution chose to immediately charge Tolbert with the lesser offense without making the effort to find out how badly Ochs was hurt. These facts were clearly discoverable. If there was doubt concerning the prognosis of the injury to Ochs, the state could have waited the few days necessary to obtain a proper medical diagnosis. Surely this places no undue burden on the prosecution. Rather, the development of the known facts before filing a charge is what should be expected from competent police work.
With adequate investigation, the state could have prosecuted Tolbert on the felonious assault charge and avoided the question of double jeopardy. Instead the majority encourages the state to prematurely file slapdash charges against an accused without ascertaining the full extent of the crime. Accordingly, I must respectfully dissent.
Wright, J., concurs in the foregoing dissenting opinion.