33 Ind. App. 509 | Ind. Ct. App. | 1904
The appellant Jacob P. M. Miller was prosecuted for the offense defined by §1983 Burns 1901, which provides: “Whoever, having the present, ability to do, so, unlawfully attempts to commit a violent injury on the person of another, is guilty of an assault,” etc. The affidavit and information charged that on the 9th day of March, in the year 1903, in the county of Miami, and the State of Indiana, the appellant, naming him, did then and there unlawfully assault William Sharp, by then and there unlawfully attempting, etc., pursuing substantially the language of the statute; contrary, etc. Besides entering a plea of .not guilty, the appellant filed a special plea, on which issue was taken, wherein he set up his prior acquittal, before a certain jnstice of the peace of the same county, of a charge of having, on the 9th day of March, 1903, unlawfully, by words, signs, and gestures, attempted to provoke William Sharp to commit an assault and battery upon the appellant, the said William Sharp then and there having the ability to do so; contrary, etc.; the proceedings before the justice being set forth in the plea, whereby it appeared, after an affidavit of William Sharp preferring such charge against Jacob P. M. Miller, that on the 18th day of March, 1903, the appellant voluntarily appeared in court ““and pleaded not guilty; as the constable had made no return of service before or at the hour set for trial, and as he had inserted names of witnesses above the justice’s signature, and the affidavit was not sufficient in not summoning the complaining witnesses nor stating the name of the defendant in full, on motion of the defense I dismissed the case from my docket and discharged the defendant Jacob P. M. Miller from custody.” It was further stated in the proceedings before the justice of the peace, that, “at the time,” the defendant pleaded and asked for a speedy trial, by his attorney named; that there were no returns of warrant or subpoenas in the court, and names of witnesses could not therefore be inserted in proper place on the
It is assigned here that the court below erred in overruling the appellant’s motion for a new trial. Upon the merits of the charge tried under the plea of not guilty the evidence authorized a conviction. There was conflict in the testimony, but the whole evidence was of such character that this court would not be warranted in interfering with the conclusion of the jury that there was an unlawful assault.
It is strongly urged that the evidence showed the former jeopardy of the appellant. The former prosecution was based on §2061 Burns 1901, which provides: “Whoever by words, signs or gestures, provokes or attempts to provoke another, who has the present ability to do so, to commit an assault or assault and battery upon him, is guilty of criminal provocation,” etc. The right to rely upon a former
In Joy v. State, 14 Ind. 139, 152, it was said, that if a defendant moves in arrest, or to vacate a judgment already rendered, he will be presumed to waive any objection to-being put a second time in jeopardy; and if he succeeds iii causing judgment to be arrested on a verdict rendered on a good indictment, the court supposing it to be bad, he may be again placed on trial. “The reason of this is that the proceedings were had at his instance, which resulted in setting aside the verdict, etc. It was for his benefit, and he is presumed to waive any future peril he may incur, in view of the advantage he derives by getting rid of the present pressing jeopardy.”
In Von Rueden v. State, 96 Wis. 671, 71 N. W. 1048, where it appeared that the discharge of the defendant from the former prosecution was granted upon his own motion on the ground of the insufficiency of the complaint, that the motion was sustained, and the case dismissed, and the defendant discharged, and a new complaint was made and filed, and a warrant issued, under which, a conviction was had, it was held that there was no former jeopardy, and that the defendant could not be allowed in the second case to say that the complaint in the former case was good.
In Hensley v. State, 107 Ind. 587, it was said that it is not sufficient to show that jeopardy attached, but it must also be shown that it was not discharged by operation of law, or waived by some act of the defendant.
We would be inclined to regard the defendant as having purposely brought about the ending of his jeopardy before the proceedings reached the stage of conviction or acquittal of the offense charged, by procuring the dismissal of the prosecution through his own motion because of supposed gross irregularities, including the alleged insufficiency of the affidavit. There seems to be sufficient reason for concluding that there was an implied waiver of jeopardy. To sustain the defense of former jeopardy, the offenses charged in the two prosecutions should be the same in l$w and in fact.
In State v. Elder, 65 Ind. 282, 32 Am. Rep. 69, the following rules were said to be deducible from principle and authority: “1. When the facts constitute but one
In Freeman v. State, 119 Ind. 501, the following is quoted with approval from a text writer: “The test is, whether, if what is set out in the second indictment had been proved under the first, there could have been a conviction; when there could, the second can not be maintained ; when there could not, it can be.” See, also, Beyerline v. State, 147 Ind. 125; De Haven v. State, 2 Ind. App. 376; 17 Am. & Eng. Ency. Law (2d ed.), 596.
In Davidson v. State, 99 Ind. 366, it was said: “The true test to determine whether a plea of former conviction,
Comparing the statutory definition of the two offenses, criminal provocation and assault, and .applying the rule recognized as the test for the determination of the question of former jeopardy, by considering whether the evidence necessary to sustain the charge of an assault would have justified a conviction under the charge, of a criminal provocation, it is apparent that the offenses are essentially different in character; the former being an offense against the person, the latter an. offense against the public peace. A conviction or acquittal of either of the offenses would not necessarily determine the question whether or not the defendant was also guilty of the other. See State v. Gayen, 17 Ind. App. 524.
The appellant in his motion for a new trial assigned as one of the grounds the giving to the jury of a number of instructions indicated by their numbers.. In his brief one only of these instructions is presented as erroneous. The assignment in the motion being joint, it could be of no avail here unless it were shown to us that all the instructions were erroneous.
The refusal to give two of the instructions requested by the appellant was assigned as another ground in the motion. It is suggested by counsel for the State that the subject-matter of these instructions was sufficiently covered by instructions given. The instructions rejected contained some correct general statements concerning the presumption of innocence and the effect of reasonable doubt, but it w'as not error to refuse them unless it was the duty of the court to give the two instructions as a whole. They each contained statements relating to the subject of former jeopardy, and under the condition of the record, it being mani
Judgment affirmed.