18 Ind. App. 472 | Ind. Ct. App. | 1897
This case was transferred to this court by the Supreme Court.
Appellee was arrested upon an indictment charging a misdemeanor. The indictment was returned on November 5, 1895. On the first day of January term, 1896, of the Sullivan Circuit Court, defendant moved to quash the indictment. This motion was overruled on the second day of the same term. On the 13th day of the same term, on application of the State, the cause was continued until the seventh day of the following term of court. On that day the following order book entry was made: “Comes now Charles D. Hunt, prosecuting attorney, prosecuting the pleas in behalf of the State, and this cause is stricken from the docket with leave to reinstate, and an attachment ordered for Samuel Tincher.”
On the first day of the next term of court, the prosecutor ánd defendant’s attorney being present, the prosecuting attorney asked an order of court to reinstate the cause, and over defendant’s objection, the cause was reinstated. The prosecutor then asked that
The State assigns as error the overruling of the motion of the State to reinstate said cause upon the docket after it had been stricken from the docket with leave to reinstate.
Where an application made by a prisoner to be discharged under sections 1851-1853, Burns’ R. S. 1894, is granted, such discharge amounts to an acquittal of the offense. McGuire v. Wallace, 109 Ind. 284. The ordinary dismissal of a criminal proceeding against a defendant, by the prosecuting attorney, is equivalent to a nolle prosequi. State v. Woulfe, 58 Ind. 17.
In the case of Kistler v. State, 64 Ind. 371, it is said: “We do not doubt that, by arrangement’of the parties, a civil, and probably a criminal, cause may be temporarily omitted from the docket, without being absolutely dismissed. Perhaps the court may order that a cause may be temporarily omitted from the docket, without the consent of the parties. But it would be inconsistent with the regard due to the rights of criminals even, to sanction the practice, and recognize as law a rule, that the court might strike from the docket and reinstate their causes, and order them re-arrested, at pleasure.”
In the case at bar the case was not stricken from the docket unconditionally, but with leave to reinstate. The order book entry shows that this was done on motion of the prosecuting attorney. It does, not appear that the defendant was present either in person or by
Seasoning from the case of Kistler v. State, supra, we think the action of the court, upon motion of the prosecuting attorney, and in the absence of the defendant, in striking the case from the docket, amounted, in effect, to a dismissal or nolle prosequi.
Judgment affirmed.