Dye v. State
29 N.E. 771
Ind.
1891
Check Treatment
Elliott, J.

The appellant has specified as error that the court “ overruled his answer in abatement.” This specification is not a proper one, for no specification in the assignment of errors is sufficient unless it indicates with clearness and precision the puling assailed. The ruling which the appellant probably intended to specify is that made in sustaining the demurrer to his answer in abatement, but he has failed to specify that ruling, and if we strictly applied the law we should be compelled to hold that his specification is utterly ineffective. We have, however, deemed it best to examine the questions sought to be presented by the specification mentioned.

The answer in abatement is bad. Two propositions support this conclusion :

First. Before jeopardy attaches a prosecution may be dismissed, although an indictment has been preferred.

Second. After a nolle prosequi is entered and a prosecution ended, the accused may be prosecuted by information if the grand jury has been discharged and the court is in session. Rowland v. State, 126 Ind. 517; State v. Drake, 125 Ind. 367; Sovine v. State, 85 Ind. 576.

It is declared by the authorities that the admissions of the thief are not admissible in evidence against the receiver of the stolen goods when not made in the presence of the latter or where no conspiracy exists. Reilley v. State, 14 Ind. 217; Roscoe Crim. Ev. (8th ed.) 53. If the admissions of the thief in this case were competent, it can only be upon the ground that the accused had conspired with the thief to commit the crime. We have not been shown any evidence tending to establish a conspiracy, nor have we been able to find any. If we could find any such evidence, direct or circumstantial, we could sustain the judgment, but we have not been able to find any evidence remotely tending to prove a conspiracy. We do not, indeed, understand the counsel representing the State to assert that there is any such evidence. What counsel say is this : “ The evidence objected *89to tended to prove a conspiracy.” But it is a rudimental principle that agency, conspiracy' or the like, can not be proved by the declarations of the alleged agent or conspirator. To make the admissions of an alleged conspirator evidence there must be some evidence, although it need not be strong, of the existence of the conspiracy. Where there is some such evidence, either direct or circumstantial, the admissions, if made before the crime is committed, is competent, otherwise it is not.

Filed Oct. 15, 1891; petition for a rehearing overruled Dee. 15, 1891.

Judgment reversed, with instructions to award a new trial.