*1 proper might considered this extra have evidence. With objection, jury only would have had evidence the two charged previous affidavit, in the felonies which were wording required by specificity, verdict proposed by instance, appellant, rule would only technicality. be a needless the verdict is so defective uncertain that “Unless judgment thereon, a can venire motion rendered de novo Grazer v. will be sustained.” State 46, 36 219 Ind. N. E. 279. 2d
Rehearing denied. DeBruler, C.J., Jackson, Arterburn, Givan, and JJ. concur. Reported in N. E. 2d 212. Note. —
Johnson of Indiana. July April Rehearing [No. Filed denied 1969.] 1969. *2 Brown, DeWitt, Butler, DeWitt, M. Hahn & of Indi- Clifford appellant. anapolis, for Killian, Deputy Rex P. Attorney General, Dillon,
John J. General, appellee. Attorney for
DeBruler, appeal for C. J . This conviction an from a charged It violation of Firearms Acts. was Appellant “carry person pistol on about in a place place abode nor of busi- then there his fixed by jury ness, . Trial and without license therefore. . .” year Appellant prison. sentenced one alleges grounds procedural error, for reversal a error as evidence, certain insuf- admission ficient evidence sustain the verdict. following argument
Appellant’s first relies on the facts: 28, 1963, was arrested on March and an affidavit 23, 1964, against May 23, him 1963. March On filed ground Prosequi filed a Motion for Nolle on the evidence to there was insufficient conviction. sustain granted Appel- court the motion notice to trial without against August 10, 1965, lant. On another affidavit was Appellant charging offense identical terms. The same Discharge Appellant’s Motion overruled court urged ruling reasons. now erroneous two *3 (1) argues that, absence, in the court grant a Motion to Nolle for cannot insufficient evidence and brought date then later same at a allow against him. It said that in these circumstances dis- equivalent acquittal therefore, is, a missal to an bar prosecution. to the second support position. in several of his cites cases (1879), Kistler v. 64 Ind. where
basic case is prosecutor, in the absence with the leave defendant’s unconditionally from the trial court struck the cause prosecutor to rein- The trial court later allowed docket. indictment on the docket. Court reversed state the This same saying, is, now in “What we decide this case action court, striking prosecutor at the case bar in unconditionally absolutely, amounted from the docket prosequi, cause, reinstatement of a nolle and that the said subsequent illegal defendant,
and the' trial of were acts.” 375; 64 Ind. at App. 472, (1897), Ind. State v. 48 N. E. In Dix prosecutor trial court to allow the refused to reinstate an stricken from the docket after it had indictment been Appellate saying, leave reinstate. The Court affirmed supra, “Reasoning State, Kistler from the case upon court, prosecut- of the motion the action we think defendant, ing attorney, in strik- and in absence amounted, effect, ing docket, in from the to a case prosequi.” App. nolle 18 Ind. at 474. dismissal E. 176 Ind. N. v. State Southerland In striking from an indictment held that docket Court a where as the defendant had not be treated would jurisdiction. dealt Those cases with the status fled They after stricken the docket. an indictment longer nullity function a and could first held it was issue, prosecution. Since it was not pleading in a criminal question of a new not deal with the whether cases those charging might have obtained been pleading or indictment terms. offense in identical the same v. State controlled Winters case is In view this our 294. There the 160 N. E. (1927), 200 Ind. city court, defendant’s ob- over affidavit
dismissed an charging offense a affidavit same jection, new affirming, this Court said: In circuit court. officer files that where “Appellant contends prosecuting having juris- charge against person court a criminal objection of over the diction, the case cannot dismiss defendant defendant, or without consent the having charge’ obtained, ‘refile the same and then been offense) begin prosecution for the same (i.e. another prosecute *4 jurisdiction competent and there another court rulings upon contention He this bases the defendant. (1877), v. 58 of State in the cases of this court Woulfe (1878), 64 Ind. 19; Kistler v. State Ind. voluntary App. where (1897), 18 Ind. Dix State v.
83 proceedings against by- dismissals criminal defendants prosecuting attorneys in the absence of the defendants and equivalent without prosequi. their consent to were held nolle to prosecution a Such cannot thereafter be reinstated objection over the State, supra. the defendant. Kistler v. question The bar, raised in the case at however, is essen- tially appellant upon decided in different the cases Here, prosecuting attorney relies. did not seek prosecution a dismissal, reinstate where had been a but new In such a case the action. dismissal prosequi jury empaneled entered before the equivalent acquittal is not sworn to an does bar subsequent prosecution for the same offense.” Ind. at 50. long Joy This has been the law this (1860), State. v. State 139; (1881), 586; Ind. Halloran v. Dye 80 Ind. State (1891), 771; Lynch 130 Ind. 29 N. E. v. State 376, 165 240 Ind. N. E. 2d 762.
Since present the dismissal prior case occurred jeopardy attaching, refiling there was bar to an affidavit
charging the same only offense identical terms. The procedure Appellant’s constraint right on this is the speedy question to a To trial. we now turn.
(2) argues Appellant that even if the had right Appellant file second affidavit still had a right speedy constitutional I, trial under 12 of Art. § Appellant alleges Indiana Constitution. filing from the of the first affidavit length Appellant’s discharge such a allow second as to Supreme under Burns’ Ann. Ind. Stat. 9-1403 or Court § l-4d, apply Eule whichever is held to to this case. This consti- implemented tutional had been that statute July 1, 1965, by Supreme super- Court Eule which argues ceded the statute. The himself the sta- apply tute should case. agree
We had a trial and applied 9-1403 that Burns’ should be to this case rather § *5 Supreme than Court Rule l-4d. The into Rule went July 1, 1965, only apply effect and has been held to charges where had been initiated after that date. ex rel. Uzelac v. Lake Criminal Court (1965), Ind. 247 E. The fact that on ap N. 2d 21. affidavit pellant convicted was after date con that is not trolling. proceedings running which started the time as as prior far concerned occurred is to that date. says: The statute recognizance person by “No be held shall to answer an affidavit, trial, period or for a indictment without embrac- ing court, first including more than three terms not the term recognizance thereon, unless at which a taken if taken time; discharged in term ance be had but he be shall continu- upon motion, delay his own or the be caused
by act, try his or there be not sufficient time him at term; and, case, brought such if third latter he be not except discharged, trial at such third term he shall be provided in the next section.” Burns’ 9-1403. § applying we In statute to case not do count nolle, between of the first affidavit and during not because does show that time no that “upon delay motion”, continuance his own that had by In not his act”. his unsworn brief “caused supporting reconsider denial of trial court motion to his discharge Appellant said: if he to have “The defendant realizes that seeks grounds delay more on in trial for case dismissed court, he must show
than terms three successive State, complained delay was caused that upon request him, had his was not not State, 215 upon agreement. v. Ind. Sullivan or The defendant his accordance with the Sullivan submits way rule, the in no contributed for the defendant counsel court, bringing nor do delay before this frivolous, irrelevant, pleadings or immaterial file counsel thereto. . .” . p. Appellant says: appeal, on In brief mention Appellant feels made "The that some should only law, exception old not under the which existed Supreme 1-4D. maintained in the Court Rule but is still exception, course, in which the refers to case This delay own act and caused the defendant’s itself totally chargeable therefore, the State. con- This State, cept of Sullivan in the case has been enunciated held the Court 19 N. E. 2d where Ind. delay affirmatively has the defendant must show that Appel- clear to the not lant ring act. It been result his own seems here, occur- of time and he would stress granting of the Motion to between the date original charge, 23, 1964, March and the date Nolle *6 August refiling of on the of the same identical way and it is in no fault of the defendant the period Appellant the of time to the directs which this upon to his Motion Courts attention and which he based Discharge upon imposed period of time in the court. This through Appellant of own and the act his require- Appellant ments he has met both the maintains that they law, Supreme of the old Court rules as supra.” rule, today exist and Sullivan refer appeal We not note that does his brief filing the time of affidavit between the first pro- transcript reveal The in this case does not what nolle. ceedings place during cause time under a different took that by Appellant or number. no sworn his There is statement concerning period up Appel- counsel that of time. It is not done bring has so himself statute he lant to within 343, 19 215 Ind. with record. Sullivan v. State this N. E. 2d 739. urge any count
The does not we himself that filing August 10, 1965, time the second after date of showing If with affidavit. he were do so he would be faced July 25, itself, place took on trial delayed by any Appellant. Rather dilatory motions argues had place it were he that no trial could take even if therefore, affidavit, filing on the date of the second what occurred after that date not relevant here. is then, period only relevant, period is the between the
The 23, 1964, the second affidavit on March argues August 10, Appellee on should allegation Appel- at all because is no not be counted recognizance during period and, there- lant was held right apply. agree. fore, do not the statute does not We Constitution, Art. speedy rooted in Indiana a trial is right, implementation an of that statute § supra. Court, The sta- State ex rel. Uzelac v. Lake Criminal invalidly it. operate limit tute to defeat the cannot be underesti- accused must not The value an may length time First, mated. a limit sets life recognizance the restrictions all held important being implies. held A second reason so hearing while requiring a it insures before fresh the minds witnesses the incident is especially testify. they will be unavailable to This become normally not his witnesses will useful to an accused because reports their which to refresh and records with have written equally applies not held those consideration memories. This by recognizance. Thirdly, adhere to in this under the rule we for an nolle, not have to accused, after does labor case, prosecu- length of a renewed threat undue under the tion for the offense. same hold, therefore, and later nolles that where
We offense, charging same or indictment an affidavit refiles *7 refiling the will be period the between nolle the issue, if resolving speedy the counted, trial the during recognizance by had been held accused period. Su supported by United States position the here
Our they decision, held that the preme where, in a recent Court guaranteed by Sixth right speedy the trial to a federal process due applied the via the states Amendment Klopfer In Amendment. Fourteenth clause 1, 2d 87 213, Ed. 18 L. U. S. Carolina North prosecutor 988, “with S. Ct. nolled leave reinstate” discharged recognizance. from defendant Defend objected nolle elapsed ant so much time had because under law since the arrest and state was left bring right again any at time. The Supreme reversed, saying: United States Court Supreme “The North Carolina Court’s conclusion —that right pro- ato trial does not afford affirmative against unjustified postponement tection of trial for an custody discharged explicitly accused been re- —has jected by every other court which state has considered the question. the court position . . . too We believe taken 18 L. below was erroneous.” Ed. 2d at question is, then, applying The final statute period, elapse crucial did three terms court between the
term in which nolle the term in which the second affidavit was filed? This case was County in the Marion Criminal at that Court per beginning year, had six-month terms on the two January respectively. Monday July, (Acts first [Spec. Acts ch. Sess.] § ch. as amended being the same Burns’ Ind. Ann. 4-2309 § Stat. § Repl.]). Obviously, only elapsed two [1946 terms between the first term of 1964 in which was taken and the second term of 1965 in which the second affidavit was filed. Therefore, give Appellant statute discharged under it as it would take three The terms come within the trial court was correct statute. denying Discharge. Appellant’s on both issues in Motion alleged Appellant error that the second prop- pistol court admitted into evidence which had not been erly pertinent trial, identified. The facts are these: At the Rieger finding snub-nosed, caliber, Officer .38 testified to pistol ground Smith near the door on Wesson sitting. passenger side the car in which Rieger sitting front seat. Officer *8 gun Sergeant that over Fisher at the scene of the turned Rieger During trial, Officer handed State’s arrest. snub-nosed, caliber, “1”, Smith and No. .38 Wesson Exhibit weapon pistol if Exhibit was identical to the and asked Rieger Officer it found at the arrest scene. he had stated by objection was, he admitted that but after He it number. then said was he had not recorded serial picked make, gun model up that he had similar and gun. he had found type also that He testified only day. Appel- Sergeant pistol one that Fisher turned over to testimony alleges relative to the sole lant that this is pistol not a identi- and that sufficient of the it identification evidence. to be introduced into pistol allow it fication of the stating was the that Appellant were If correct pistol it testimony the identification relative to only However, question. the record shows would be close Sergeant following testimony by Fisher: marked “Q. Sergeant you been Now, has I’ll what show only, Exhibit no. purposes State’s for identification you you’ve if before? ask seen my ? May *9 243 complete Ind. 189 E.N. 2d 715. Here there a chain custody and an identification serial number. We believe sufficiently positive a pistol. this is identification of the urges
Defendant error there third was insuffi Upon allegation cient evidence sustain the verdict. such an favorably we the evidence must construe most if see is some evidence jury guilty a reasonable infer could was beyond Wojcik (1965), a reasonable doubt. v. State 246 Ind. 866; Wynn E. (1966), N. 2d v. State 247 Ind. 644; 214 N. E. 2d Coach v. State 250 Ind. following N. E. 2d 493. The evidence determinative of Sergeant spotted issue. a car Fisher testified reported plate Washington a stolen license West Street. help He the car, followed radioed for and with siren on pulled Washington the car over two blocks South of Street on Warman Avenue. There were car three men one riding whom was who front was Appel The third man seat. back seat behind the Sergeant part lant. Fisher as follows: testified “Q. Right you you stopped car before when
stopped you what, anything, if Leon Johnson see do? thought
IA. I observed the defendant throw what gun a out the window.
Q. you gun say a When ... pistol.”
AA. Sergeant further On Fisher testified: cross-examination “Q. any- your knowledge what, if You own don’t know you? thing, out of that car do was thrown I I A. I the defendant throw what As thought testified saw gun out the window. to be a Q. Alright you something now, him throw out the saw
window? gun.
A. A Q. gun? testifying it You are was a gun. thought A. I it was
Q. you asking you if under oath I’m saw the defendant gun asking you I’m out of car. Now throw a asking you you any guessing if de- I’m saw the gun car, Sergeant Fisher? fendant throw out gun. A. I sure it
Q. you you say under saw the defendant Can oath gun Sergeant car, throw a out Fisher? sir, A. I I Yes believe could.
Q. right jury You will now? so state A. Yes sir.” pas- Rieger Officer he walked around
When arrived sitting senger was still the car where side caliber, pistol. stepped snub-nosed, .38 Wesson Smith and aon Sergeant picked pistol up gave it to Fisher. He It No. Officer Exhibit “1”. at the trial as State’s was introduced Rieger part testified follows:
“Q. approximately Now you on around car. went So you of the automobile far from the back how gun? find right setting gun on the hand side
A. was The ground, up open just you door would about where step out the car. Q. testifying you’re the Court In other words just Apparently dropped to the side. it down dropped the side ? down to right. A. That’s side,
Q. relationship on the hand door In standpoint gun from of whether where it of the door or behind door? was forward you just you open A. door and would It —as gun step laying out there.” have been believe could We this is evidence which it validly carrying pistol on inferred the defendant was person. police
or about his A officer saw gun another throw a car and out of the window the police picked gun car, officer found a beside up, gave superior officer, Sergeant Fisher, it to gun juris trial. Other was introduced into evidence at the v. dictions are accord with Commonwealth this decision. 632; Ross v. State (1963), Super., 2d Whitman Pa. 186 A. (1965), Maryland 97; Del. 232 A. 2d Brookhart Md. 209 A. 2d Judgment affirmed. J., partici- concur; Givan, Hunter, not JJ.,
Arterburn and pating; opinion. J., Jackson, dissents with Opinion.
Dissenting majority agreement Jackson, J . I am with the opinion portion herein thereof. and dissent confronting problem bar arises
The in the case at the court prosecu- apparently there were two virtue of fact offense, affidavit. same both instituted tions County, first affidavit was filed Court Marion Criminal style of “State of Indiana 1, under the name *11 Division and 23, 28906Y,” May on Johnson, Leon No. Cause CR charged appellant 1935 violation of the The affidavit with 92 July 11, 1963,
Firearms Act. On appellant, person and counsel, arraignment appeared charge on said and entered plea guilty charge. of Thereafter, a not 23, on March appellant without notice to or counsel, his the State charge filed a motion on account of said “insufficient evidence a sustain conviction.” The motion to nolle was approved Eugene Fife, Jr., the Honorable M. on said date and was nolled. August
Later, on there was filed the Criminal of County, charging Marion Court Division an affidavit appellant Act, Violation of Firearms under the name style Johnson, and State v. Leon of Indiana Cause No. of CR 650648. affidavit, May 23, 1963, follows,
The first reads as to-wit: That, REMEMBERED, day “BE me, IT on this before Prosecuting Attorney NOBLE R. PEARCY of the Nine- Circuit, personally
teenth Judicial came HARTWELL who, being duly sworn, upon says JARVIS oath his day MARCH, LEON on or about the JOHNSON of A.D. 1963, did County Indiana, at of and Marion in of the State feloniously carry pistol there unlawfully then and and a person place on or about his in a not then and there his place business, abode nor therefor, fixed and without license being contrary then and there the form provided against the statute in such case made peace dignity Indiana.” August 10,1965, affidavit filed reads as follows: second me, REMEMBERED, That, day “BE IT before Prosecuting Attorney of NOBLE R. PEARCY Nine- Circuit, personally teenth Judicial VIS LEON JAR- came HARTWELL says being duly sworn, upon who, oath day MARCH, JOHNSON on about the 28th County A.D. at of Marion in the State feloniously Indiana, unlawfully and there did then person place carry and pistol on or in a then about his place business, and with- there his abode nor fixed being contrary therefor, out license then and there *12 provided, made and of statute such case the form the dignity against peace the State of Indiana.” the presented by appeal question the defend- this concerns The guaranteed by speedy right trial the Sixth to as ant’s Constitution, by Article United Amendment to the States 1 of the Indiana Constitution. Section majority disagree part opinion wherein I of the follows: it states as Appellant does refer appeal not that in “We note his brief filing of the affidavit and
to the time between the nolle. The first the transcript case not what this does reveal proceedings number. There place under a cause that time different took Appellant or by no statement is sworn concerning up Appel period of It the is to that time. counsel bring has not within the statute and he lant himself (1939), 215 Ind. record. Sullivan v. State done with so 343, 19 E.N. 2d 739. urge any not that count The himself does we filing August 10, 1965, date the second time after If he to do he be faced with show- affidavit. were so would July 1966, ing place itself which took trial Appellant. delayed by any dilatory not motions place argues even no could take Rather he it were had on the that trial if filing affi- rele- date of second davit, date not therefore, occurred after that is what here. vant then, period only period relevant, between is The the second March
the nolle on argues August 10, Appellee affidavit on period allegation this at all not counted because should be is during by recognizance held apply. We therefore, and, does not period the statute speedy agree. right rooted in trial is The do not an Constitution, and the statute Art. § Indiana Lake right, ex Uzelac implementation rel. of that operate defeat supra. Court, cannot Criminal The statute to_ invalidly it. The value limit First, sets a be under-estimated. accused must not an recogni- may length be held of time limit being so life that on his the restrictions zance with all held requiring a important reason implies. A second hearing incident while insures a speedy trial is that it is become they fresh minds of witnesses before testify. especially unavailable to This will be useful to written normally an accused because his witnesses will have not reports and records with their refresh applies equally memories. This consideration those by recognizance. Thirdly, held under the rule we adhere case, accused, nolle, in this after a an have does not length to labor for an undue under the threat of prosecution a renewed for the same offense. hold, therefore, We that where a nolles and later charging refiles affidavit or indictment same offense, refiling between will and the counted, resolving issue, if the recognizance during accused period.” had been held majority opinion predicated theory on the only right appellant may exercise to relief in the case obtain *13 predicated at bar statute, on the three term 9-1403. Bums’ point I appellant charged by out was filed affidavit May 23, 1963, with the of of offense Violation the Fire- Act, charge Court, arms Marion was in Criminal Division 1, charge the knowledge therein or the was nolled without presence August appellant 23,1964. on March Thereafter on 10.1965, Court, 2, appellant in Marion Criminal was Division again charged by affidavit Violation the 1935 with Firearms the affidavits, supra, Act. A reference to the two discloses alleged same, acts of to be the affidavit the violation the signed by person was in the same each time and was filed court, the same but different divisions. any by record, appellant far had not at
So disclosed the as the state, any during time state the out of fled was not at August period May 23,1963 10,1965, to but available May 23, 23, during period to for trial the 1963 March 1964. August during 23, 1964 to fact that March to file 9.1965, affi- Indiana not see fit a new State not, my appellant does charging this offense davit granting opinion, him a the State of burden of relieve August identical 10, 1965, speedy when it on trial by charge 23, May I reason that so filed on first voluntarily effect, August 10, the State in filing delay- by position its placed appellant State where speedy deprived appellant of a harassing ing tactics constitutions. and Federal trial under both Supreme States held Court United If, Hooey (1968), S., Ed. 2d incarceration U. 21 L. Smith v. Penitentiary did not excuse of a a Federal defendant making effort for state to secure defendant State from depriving a de- prosecution, for resident what excuse exists guilt inno- determine of a trial to his fendant cence? opinion appellant
I not and is not entitled am of the (B.R.S. to relief under the three term statute he seeks opinion from March 9-1403). is that Sec. The reason for such August charge for such appellant’s pending forum existed wherein and no violation guilt deter- or innocence of such could have been implement appellant’s action his Hence on face mined. its statutory relief must fail. speedy trial,
He however constitutional has sought statutory remedy superior be enforced. here properly the attention both That called to discharge in that motion and this Court his rights. deprivation of his constitutional calls attention deprivation caused thereof was He further therein shows long affidavit and the first the state its year second affidavit delay of well over *14 charged affidavit. first the same offense over state criminal case has no control defendant manner, insti- or forum in and state charged prosecution cannot be on the tutes or carries filing delay of criminal any with caused the state in charges. discharge appellant to a my opinion entitled
It is more than of the second affidavit on motion after the years alleged alleged two offense after commission year nolle of affidavit. more after first than a are at bar confronted with It that we case would seem persecution appellant rather than harrassment good prosecution. faith and remanded
The cause should be reversed appellant’s grant for a new court, motion instructions dismissing thereupon trial and an order said court enter should rights. appellant’s constitutional said for violation Reported E. n 246 N. 2d 181. Note. — Edward Samuel Loeb v. Millicent R. Loeb. April 3, Rehearing 1969.] Filed denied October [No. 1267S145. I refer notes A. now checking number? Q. purpose of serial For gun sir, I’ve before. seen A. Yes sir. Yes Q. ?when Where Washington Street south 28 on Warman March A. On Street. 28,1963 ? Q. that March Is A. Yes sir. you previously weapon stated Q. Is Rieger? by you Officer handed by Officer me gun handed that was A. is the This Rieger.” Exhibit identified Sergeant State’s Fisher shows This him pistol handed number “1” serial No. Rieger Rieger Officer at arrest scene. Officer only pistol per stated found one he had sonnally Sergeant handed it to Fisher at that time. stronger This ais identification even than the case where identifying object put an scratch later identi fied the maker See Dixon scratch.