Alyea v. State, 24903.

Citation152 N.E. 801,198 Ind. 364
Decision Date23 June 1926
Docket NumberNo. 24903.,24903.
PartiesALYEA v. STATE.
CourtSupreme Court of Indiana

OPINION TEXT STARTS HERE

Appeal from Rush Circuit Court,

Gregg Alyea was convicted for unlawful sale of intoxicating liquor, and he appeals. Affirmed.

Wickens & Hamilton, of Greensburg, for appellant.

Arthur L. Gilliom, Atty. Gen., and Edward J. Lennon, Jr., Deputy Atty. Gen., for the State.

WILLOUGHBY, J.

The appellant was convicted upon an affidavit charging him with the unlawful sale of intoxicating liquor on or about the 1st day of December, 1922, at and in the county of Decatur, state of Indiana, to one Arthur Springmire, in violation of section 8356d, Burns' Supp. 1921 (Acts 1921, p. 736, c. 250).

The affidavit was filed in Decatur county, and a change of venue was taken to the Rush circuit court, where the trial was had. The defendant waived arraignment and entered a plea of not guilty and on the 11th day of December, 1924, he was tried by the court without a jury. The court found him guilty as charged, and assessed his fine in the sum of $200. A motion for a new trial was made and overruled, and the court entered a judgment against appellant on the finding, that he be fined in the sum of $200 and pay the costs. From such judgment this appeal is taken.

The appellant presents but two questions to this court for its consideration. The first is, the appellant claims that under section 2091, Burns' 1914 (section 2252, Burns' 1926), he was entitled to a discharge because of the unnecessary delay of the state in prosecuting the case. The record shows that the affidavit under which appellant is prosecuted was filed April 3, 1923. On April 20, 1923, the appellant filed a motion to quash the affidavit. May 3, 1923, the motion to quash was overruled. September 19, 1923, appellant filed a motion for a change of venue from the county. On the 25th day of October, 1923, the motion for a change of venue was sustained and 10 days given defendant in which to perfect said change. On the 7th day of December, 1923, the papers and transcript were received by the clerk of the Rush circuit court, Rushville, Ind. On the 19th day of September, 1924, being the seventeenth judicial day of the September term of the Rush circuit court, the defendant filed an affidavit and motion for a change of venue from the judge, which motion was sustained. On the 24th day of September, 1924, the parties having failed to agree on a special judge the court presented names from which the prosecuting attorney and the attorney for defendant struck and left the name of Fremont Miller, as special judge to try the case. On the 11th day of December, 1924, said special judge, Miller, qualified and assumed jurisdiction in the case, and on the same day appellant filed a motion to be discharged on account of the delay in the trial. The motion to be discharged on account of delay was overruled. The defendant then filed an amended answer of former jeopardy. To the amended answer of former jeopardy the prosecuting attorney filed a demurrer, which was sustained. The rulings of the court on this motion and on this demurrer are assigned as error.

[1] In order for the appellant to take advantage of section 2252, Burns' 1926, he must show facts which bring him within the provisions of that statute. Woodward v. State, 174 Ind. 743, 93 N. E. 169, Ann. Cas. 1913A, 49. He must show that the delay of which he complains was not caused either directly or indirectly by him or by some act of his. Klein v. State, 157 Ind. 146, 60 N. E. 1036. The delay which entitles the defendant to a discharge under this statute must be a delay by the state or its officers, and such delay as was not contributed to by defendant himself. Any delay incident to the taking of a change of venue by defendant cannot be discharged to the state. State v. Farrar, 206 Mo. App. 339, 227 S. W. 1078; Ex parte Tramner, 35 Nev. 56, 126 P. 337, 41 L. R. A. (N. S.) 1095;State v. Stilwell, 100 Or. 637, 198 P. 559. See, also, People v. Hotz, 261 Ill. 239, 103 N. E. 1007;State v. Lewis, 85 Kan. 586, 118 P. 59;Barker v. State, 188 Ind. 263, 120 N. E. 593. Appellant has not shown facts that bring him within the statute.

[2] Upon a plea of former acquittal or conviction, the burden of proof is on the defendant to show the identity of the offense which must be identically the same as the one for which he was formerly prosecuted. It is not always a sufficient showing of a former conviction or acquittal to constitute a bar to a second prosecution, to plead former jeopardy, and produce a record showing it, but the accused must show by other evidence the identity of the offense, with the one charged in the indictment to which the plea is interposed.

[3] The offense for which the appellant is being tried in the instant case is defined in § 8356d Burns' Supp. 1921, Acts 1921, p. 736, c. 250, § 4 being a charge of the unlawful sale of intoxicating liquor. In his plea of former jeopardy, it appears that he was prosecuted for a violation of...

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4 cases
  • Sawyers v. State
    • United States
    • Indiana Appellate Court
    • February 19, 1976
    ...of proving. Foran v. State (1924), 195 Ind. 55, 63, 144 N.E. 529; Woodward v. State (1926), 298 Ind. 70, 152 N.E. 277; Alyea v. State (1926), 198 Ind. 364, 152 N.E. 801, 153 N.E. 775. Whichever was his burden, appellant did not sustain As already noted, Andrew's appellate counsel was not hi......
  • Flanary v. Commonwealth
    • United States
    • Virginia Supreme Court
    • September 5, 1945
    ...v. State, 1934, 207 Ind. 484, 192 N.E. 753, 97 A.L.R. 800; Sprague v. State, 1932, 203 Ind. 581, 181 N.E. 507; Alyea v. State, 1926, 198 Ind. 364, 152 N.E. 801, 153 N.E. 775. While the record recites: 'Comes now the State of Indiana by its Prosecuting Attorney and this cause is now continue......
  • Flanary v. Commonwealth
    • United States
    • Virginia Supreme Court
    • September 5, 1945
    ...McLaughlin State (1934), 207 Ind. 484, 192 N.E. 753, 97 A.L.R. 800; Sprague State (1932), 203 Ind. 581, 181 N.E. 507; Alyea State (1926), 198 Ind. 364, 152 N.E. 801, 153 N.E. 775. While the record recites: `Comes now the State of Indiana by its Prosecuting Attorney and this cause is now con......
  • Loftus v. State, 28101.
    • United States
    • Indiana Supreme Court
    • November 2, 1945
    ...of exceptions in the record showing that such facts were considered or that proof was offered in support of said motion. Alyea v. State, 1926, 198 Ind. 364, 152 N.E. 801,153 N.E. 775. This motion is based on the assumption that the Grand Jury had no right to inquire into the offense charged......

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