25 Ind. App. 123 | Ind. Ct. App. | 1900
—Appellee was indicted under §2074 Burns 1894, for disturbing a meeting. He pleaded in bar a former conviction for the same offense. The only question
A former conviction may be a bar to a subsequent prosecution although it was not had upon a formally sufficient charge. A defective charge may sustain a former conviction. Fritz v. State, 40 Ind. 18; State v. George, 53 Ind. 434; Greenwood v. State, 64 Ind. 250.
Bat the distinction must be kept in view between an affidavit which states a charge defectively, and an affidavit which does not state any charge. The affidavit in question does not state any criminal offense known to our system of criminal jurisprudence. It was attempted to be drawn under §2074 Burns 1894, but a reading of that section at once discloses that it does not in any way comply with the provisions of that section. The conclusion is stated that appellant was disturbing the peace at a certain time and place, but it is not shown what he was doing, whether anyone else was present, whether his offensive conduct, if any, disturbed or molested any collection of any inhabitants of this State convened for any purpose mentioned, or for any lawful purpose. As the former conviction was not upon any charge known to the law as a criminal offense it can not be a bar to any subsequent prosecution. The judgment rendered by the justice was a nullity. Davidson v. State, 99 Ind. 366; Shepler v. State, 114 Ind. 194; Ford v. State, 7 Ind. App. 567.
The appeal is sustained.