The jury, in the court below, returned a verdict finding appellant guilty as charged in the second count of an affidavit filed in that court December 21, 1921, and obviously predicated upon the particular provision of the statute following: “It shall be unlawful for any person to manufacture, transport, possess, sell, barter, exchange, give away, furnish-or otherwise dispose of any intoxicating liquor.” Acts 1921 p. 736, §8356d Burns’ Supp. 1921, amending §4, Acts 1917 p. 15.
Appellant met the charge thus preferred, first, by filing what he termed a plea in abatement to which, for want of facts, a demurrer was sustained; second, special answer of former jeopardy and request in writing for a separate trial of that issue prior to a trial on the general issue. This request, over the objection and exception of appellant, was denied by the court. He was
Appellant is here seeking to avoid this judgment by alleging that certain rulings and acts of the trial court were erroneous. He first insists that the court erred in sustaining the state’s demurrer to his plea in abatement. This pleading, while denominated a plea in abatement, was, in fact, an application to suppress certain evidence which the state proposed to introduce against him. This evidence consisted of an exhibit of certain intoxicating liquor and statements by the sheriff of Vigo county and one of his deputies as to what they saw and did in the way of taking charge of an unattended automobile containing intoxicating liquor while the same was standing on the public highway near the traveled way" and a short distance north of North Terre Haute. Generally speaking, it is averred that these officers, without the authority of a search warrant or warrant for the arrest of any one, upon seeing the automobile stop and persons leave it, thereupon took possession of the same and upon a search thereof found that it contained intoxicating liquor, which the state proposed to introduce in evidence, as well as the statements. of the officers; that these acts of the officers were in violation of the unreasonable search and seizure clauses of the Constitution of this state and of the Constitution of the United States. But, there are no facts pleaded connecting appellant with the automobile or the liquor or showing
Appellant next insists that the court erred in overruling his motion and request for a separate trial upon his answer in bar. The theory of this answer, while not carefully prepared, was former jeopardy. It was filed March 15,1922, and, in substance, averred that this appellant, on November 11, 1921, in the city court of the city of Terre Haute, Indiana, was charged with the identical offense with which he is here charged and for which the state is proposing to try him; that on December 20, the day fixed for the trial of appellant on the charge filed against him in the city court, and before the Honorable Robert R. Erwin, Special Judge, witnesses were sworn and evidence heard on the merits and the cause continued until the next day, when further evidence was introduced and the cause again continued on motion of the state until December 23, when, on motion of the prosecuting attorney, it was dismissed, and appellant held on the affidavit filed in the circuit court December 21.
Appellant’s answer in bar was not tested by a demurrer, motion or otherwise. Still, the state is here insisting that it was insufficient for want of facts. While the question as to whether the answer states facts sufficient is not in reality before
Our Criminal Code, §2069 Burns 1914, Acts 1905 p. 584, §198, permits an accused to plead the general issue orally and thereunder to prove former acquittal or former conviction, or any matter of defense except insanity, or he “may plead specially any matter of defense.” In the instant case appellant attempted at least to plead specially former jeopardy in bar of the charge preferred against him in the circuit court. Former jeopardy being equivalent to an acquittal (State v. Reed [1907], 168 Ind. 588) it follows that a good plea of former jeopardy is the equivalent of pleading former acquittal and a defense which, under the statute, may be pleaded specially.
In Clem v. State (1873), 42 Ind. 420, 13 Am. Rep. 369, the court, referring to the statute (2 G. & H. p. 413, §97), “in all criminal prosecutions the defendant may plead the general issue orally, which shall be entered on the minutes of the court, ánd under it every matter of defense may be proved,” (our italics) held that while that statute conferred a privilege on the defendant of pleading orally any matter of defense, yet it did not impair his right to plead specially in bar the defense of former acquittal or former conviction, as was his right at common law. The right to so plead may be very important, but it may be just as important to have the issue thus presented tried separate and distinct from the question of
It thus appears that this jurisdiction has, by statute and by judicial opinion, declared that a special plea of former acquittal or conviction presents a distinct issue which may or may not be tried along with the general issue of not guilty. Our present statute also not only confers a privilege on the defendant by expressly authorizing proof of former acquittal or former conviction as a defense under the general issue, but it further provides that he “may plead specially any matter of defense.” At this point it may be well to notice Williams v. State (1907), 169 Ind. 384; Lucas v. State (1910), 173 Ind. 302; Barker v. State (1918), 188 Ind. 263; and McCoy v. State (1923), 193 Ind. 353, 139 N. E. 587. Without taking the time and space necessary to consider these cases separately by indicating the manner of reserving the question in the court below, or to give a resume of each opinion on appeal, we regard it sufficient to say, insofar as the point in each of those cases involved a similar question to the one at bar now
From what we have said, our conclusion pertaining to the validity of the judgment at bar may be readily foreseen. So that it may not be out of place to make a suggestion using language found in Commonwealth v. Cabot (1921), 241 Mass. 131, 153: “When a former acquittal is pleaded in bar, two kinds of matters are involved, those of record consisting of the former proceeding and the acquittal, and those of fact which involve the identity of the offence and of the person alleged to have been guilty.”
For the error in refusing appellant’s request for a separate trial on his special plea in bar, the judgment in this case must be reversed. Hence, it will be unnecessary to consider the court’s ruling on the motion in arrest, or the motion for a venire de novo. The record discloses that appellant’s motion in arrest was filed and overruled prior to the filing of his motion for a new trial, and, it not appearing that any of the grounds of the motion for a new trial were unknown at the time the motion in arrest was made, the motion in arrest cut off the right to .subsequently file
" Judgment reversed, with instructions to the court below to sustain appellant’s motion and request for a separate trial on his special plea of former jeopardy, and for further proceedings not inconsistent with this opinion.