70 Ind. 47 | Ind. | 1880
— The appellant was indicted for rape alleged to have b.een committed in Floyd county, on the 1st day of August, 1878, upon the person of one Adaline Wolfe, who was described in the indictment as “ a woman child.”
A motion to quash the indictment was overruled. He entered a plea of not guilty, and was tried by a jury. The jury returned a verdict of not guilty, and upon this verdict a judgment of acquittal was rendered by the court.
Afterward; on the 3d day of December, 1878, the ap
1. That the verdict was contrary to law ;
2. That the court erred in refusing to admit competent and material testimony to show on behalf of defendant his former acquittal of the identically same offence herein charged;
8. That the verdict is contrary to the evidence; and,
4. That the punishment is excessive.
.The motion was overruled, and the appellant excepted. Judgment on the verdict, and an appeal properly taken, and error assigned, which calls in question the ruling of the circuit court in overruling the motion for a new trial.
On the trial of the cause, the appellant offered in evidence the record of the former indictment and the record of acquittal thereon. It appears from the bill of exceptions, that, before 'offering these records, the appellant proved that the original indictment was lost, that he was the same person, and that both indictments charged the same offence. To the introduction of these records in evidence the State objected, for the reason that ■ the evidence was immaterial; and the court sustained the objection and excluded the evidence, to which ruling the appellant excepted.
In view of the constitutional provision, “ That no person shall he put in jeopardy twice for the same offence,” we are of opinion that the court erred in refusing to allow this, evidence to go to the jury.
The question of whether a person has been tried for an offence is a' question of fact, to be determined by the jury, and is proven partly by the record, and partly by evidence outside the record. The court should have allowed all this evidence to have gone to the jury, and left the question of former acquittal for the jury to determine.
The rule is, that where a person is put upon trial for an offence, upon a good indictment, and there is a verdict of acquittal, he can not be tried again for the same of-fence. In this case, the indictment on which the appellant Was tried and acquitted was a good indictment, and, if the offence charged in this case was the - same offence as that charged in the former indictment, the appellant was wrongfully convicted. A new trial should have been granted.
Note. — IIowk, J., was absent when this cause was considered.