160 N.E. 294 | Ind. | 1928
Appellant was prosecuted by an affidavit filed in the Henry Circuit Court on September 15, 1925, charging him with having been found in a state of intoxication in a public place, in violation of Acts 1925 ch. 48, § 8, § 2721 Burns 1926. After a plea of not guilty, the cause was submitted to the court for trial and resulted in a finding of guilty and a judgment assessing a fine and costs against the defendant.
The errors relied upon for reversal are that the court *50 erred in overruling appellant's motion for a new trial and in sustaining the state's demurrer to appellant's plea in abatement, wherein it is alleged that an affidavit charging the same offense was filed against appellant in the city court of Newcastle on September 14, 1925, that appellant appeared thereto, entered a plea of not guilty, requested and was granted a jury trial; that on September 15, over the objection of appellant, the said charge was dismissed in the city court, and the present charge was thereupon filed in the circuit court.
Appellant contends that where a prosecuting officer files a criminal charge against a person in a court having jurisdiction, he cannot dismiss the case over the objection of the 1, 2. defendant, or without the consent of the defendant having been obtained, and then "refile the same charge" (i.e. begin another prosecution for the same offense) in another court of competent jurisdiction and there prosecute the defendant. He bases this contention upon the rulings of this court in the cases of State v. Woulfe (1877),
In Dye v. State, supra, it was said:
"Before jeopardy attaches a prosecution may be dismissed, although an indictment has been preferred . . . . After a nolle prosequi is entered and a prosecution ended, the accused may be prosecuted by information if the grand jury has been discharged and the court is in session."
In the case at bar, as in Halloran v. State, supra, it is clear that the appellant had not been in jeopardy at the time the prosecutor asked leave to dismiss, for jeopardy does not attach until the first step of the trial is taken, although, as explained in the case just cited,
"Where jeopardy has been actually incurred, there there can be no dismissal at all (and) a nolle prosequi in such a case, is, in effect, an acquittal of the accused. Joy v. State (1860),
Appellant contends that the evidence is not sufficient to sustain the judgment. The defense introduced testimony that a defective steering apparatus caused appellant to lose 3. control of an automobile which he was driving; that appellant had a peculiarity of speech at all times, and that he was ill and weak with stomach and nervous trouble prior to and at the time of his arrest, thus offering a reasonable explanation, consistent with his innocence, of most, if not all, of the facts brought out by the prosecution. The state introduced testimony that appellant staggered around, was unsteady on his feet, could not stand up or walk straight and had the smell of liquor on his breath, and three witnesses testified that in their opinion he was intoxicated. The court apparently believed the state's evidence and drew therefrom the inference that the appellant was in a state of intoxication in a public place *52 instead of drawing the inference from the appellant's evidence for which he contends.
Under general and well-settled rules of law in effect in this state in criminal cases, the Supreme Court will not determine the credibility of witnesses;1 nor the weight of evidence 4-7. in general;2 nor the weight of conflicting evidence;3 a judgment will not be set aside if there is substantial evidence, either direct or inferential, which, standing alone, fairly establishes all the material facts necessary to constitute the crime;4 and where the evidence, either direct or circumstantial, is such that two inferences may reasonably be drawn therefrom, one of guilt and one of innocence, it is not within the province of the Supreme Court to determine which inference should have controlled, that being exclusively for the jury, or for the trial court.5 Application of these rules to the case at bar requires that the judgment be affirmed.
Several hundred cases decided by this court support the foregoing propositions, (see citation to over two-hundred of them in Key number § 1159 Criminal Law, Indiana and North Eastern Digests). The only criminal cases we have noted which seem to vary the general rule are Surber v. State (1884),