107 Ind. 587 | Ind. | 1886
On the 11th day of June, 1885, the grand jury of Marion county returned an indictment in two counts against Charles -S. Hensley and John Dearbaugh, for procuring an abortion upon the body of one Mary S. Hensley, a pregnant woman, in violation of the provisions of section 1923, R. S. 1881.
» The first count charged the miscarriage of the said Mary S. Hensley, by the use of an instrument with intent to produce such a result.
The second count charged the miscarriage of the said Mary S. Hensley, by the like use of an instrument, by. reason of which she afterwards died.
Upon his appearance to the indictment, Charles S. Hensley pleaded specially that, on the 11th day of February, 1885., the grand jury of Marion county found and returned into court an indictment against him, in three counts; that the
A demurrer was sustained to this plea, and upon a plea of not guilty Hensley, the appellant here, was .found guilty as charged in the second count of the indictment in this case, and sentenced to pay a fine of $50, and to be imprisoned in the State’s prison for the term of three years.
Error is assigned only upon the decision of the criminal court sustaining a demurrer to the special plea, the substance of which is given as above.
As applicable to our system of criminal jurisprudence, the question presented in this case is a novel one, and not entirely free from difficulty. It is now, however, well settled, that where a defendant in a criminal prosecution is put upon trial on a valid indictment before a jury lawfully empanelled and sworn, and the jury is discharged before a verdict is returned, without good cause, and without his consent, He has been put in jeopardy within the constitutional meaning of that term, and that the discharge of the jury in such a case is equivalent to a verdict of not guilty of the offence charged. Wright
And, upon the same principle, it has been, in legal effect, held, and we have no doubt correctly, that where the defendant in a criminal cause has been placed upon trial before a 'competent jury, and a nolle prosequi is afterwards entered, over his objection, and allowed to prevail to the indictment or some count thereof, he can not be again tried upon the indictment, or count of such indictment, to which a nolle prosequi has been so entered. Mount v. State, 14 Ohio, 295.
But, so far as we are advised, it has never been either held, or judicially intimated, that the .entry and allowance of a nolle prosequi, under such or similar circumstances, to one count of an indictment, either arrests or restrains further proceedings upon another count of the same indictment. Neither has it, within our knowledge, ever been either held, or judicially intimated, that where a defendant has been found guilty upon one count of an indictment, and not guilty upon another count of the same indictment, he may not be again tried upon the count upon which he has been so found guilty, in the event that a new trial has been granted, or the judgment arrested, upon that count. Esmon v. State, 1 Swan Tenn. 14; Gerard v. People, 3 Ill. 362; Durham v. People, 4 Ill. 172; Weinzorpflin v. State, 7 Blackf. 186; Dickinson v. State, 70 Ind. 247; Lamphier v. State, 70 Ind. 319; Harvey v. State, 80 Ind. 142.
The striking peculiarity of the state of facts relied on in this case is, that there was no averment as to the result or outcome of the trial upon the first count of the indictment l’eturned against the appellant on the 11th day of February, 1885. In pleading a former jeopardy in a case like the one at bar, it is not sufficient to show that a jeopardy had once attached to the defendant. It must also be shown that the jeopardy so attaching was not discharged by operation of law or waived by some aet of the defendant. There being no averment either of a conviction or acquittal upon the countin question,
Our conclusion therefore is that the tacts specially pleaded in this case would have constituted a good defence of jeopardy to the particular matters alleged in the third count of the former indictment, but did not make a case of former jeopardy on the facts charged in the first count of that indictment and repeated in the indictment in the present case.
Yo cause has, consequently, been shown for a reversal of', the judgment below.
The judgment is affirmed, with costs.