Barrett v. State
| Decision Date | 13 January 1911 |
| Docket Number | 21,725 |
| Citation | 93 N.E. 543,175 Ind. 112 |
| Parties | Barrett v. The State of Indiana |
| Court | Indiana Supreme Court |
From Sullivan Circuit Court; Charles E. Henderson, Judge.
Prosecution by the State of Indiana against Charles E. Barrett. From a judgment of conviction, defendant appeals.
Affirmed.
Barrett & Barrett, for appellant.
James Bingham, Attorney-General, A. G. Cavins, E. M. White and W H. Thompson, for the State.
This prosecution of appellant, as agent of the Vandalia Coal Company, for an alleged violation of the act approved March 9, 1907 (Acts 1907 p. 334, §§ 8582, 8583 Burns 1908), commonly called by coal miners and operators the "wide-entry law," has been in this court before (State v. Barrett [1909], 172 Ind. 169, 87 N.E. 7). On that appeal, after a full consideration of the case then presented, this court reached the conclusion that the act in question was constitutional, that the affidavit charging defendant, appellant herein, with a violation of it, was good, and that said defendant's special answer was not good. The case was reversed, with a mandate to the trial court to sustain the State's demurrer to such special answer, and this the trial court did. There being then no plea, the State, by leave of court amended the affidavit and refiled it. Appellant unsuccessfully assailed the amended affidavit, first by a motion to quash and then by a demurrer. He then filed a special answer in two paragraphs, to which demurrers were sustained, after which he entered a plea of not guilty. The cause was submitted to the court for trial, and appellant was adjudged guilty and fined.
Appellant treats this case as a new one, merely similar to the case of State v. Barrett, supra, and argues that, "in view of the amending of the affidavit by the State, a new action or prosecution was commenced, and therefore the decision in the former case cannot be said to be res judicata." This contention cannot prevail, for the amendment was authorized by the criminal code (§ 2043 Burns 1908, Acts 1905 p. 584, § 172). Furthermore, an examination of the two affidavits shows that the amendment was wholly immaterial, and left the material facts substantially, if not identically, the same as those alleged in the affidavit held good by this court. State v. Simpson (1906), 166 Ind. 211, 76 N.E. 544. This is, therefore, a second appeal of this case, and it must be considered in the light of the questions of law presented by the record and decided upon the former appeal, for such questions are the law of the case and binding upon all the courts and the parties through all the stages of the cause following, whether the questions arise in the same manner or not. City of Logansport v. Humphreys (1886), 106 Ind. 146, 147, 6 N.E. 337; Lillie v. Trentman (1890), 130 Ind. 16, 17, 29 N.E. 405; Board, etc., v. Bonebrake (1896), 146 Ind. 311, 313, 45 N.E. 470; Brunson v. Henry (1898), 152 Ind. 310, 52 N.E. 407; Pittsburgh, etc., R. Co. v. Collins (1907), 168 Ind. 467, 80 N.E. 415.
The only errors that are well assigned by appellant are the following: The action of the trial court (1) in overruling appellant's motion to quash the amended affidavit, and (2) in sustaining the State's demurrer to the two paragraphs of appellant's special answer.
The trial court did not commit error in sustaining the demurrer to appellant's special answer. The facts alleged in both paragraphs were not materially different from the facts set out in the special answer of appellant that this court held bad on the former appeal for not alleging facts to bring him within the exemption of the proviso of the act; that is, for not alleging facts showing that the mine was in the block coal field, or devoted in whole or in part to mining block coal.
And under the well-settled law announced in the cases before cited, the trial court was as firmly required by the mandate of this court to hold these answers bad as the identical answer involved in the former appeal, for this court's conclusion, that the special answer therein considered is bad, is the law of the case on that question, to be adhered to throughout all subsequent stages of the case.
Moreover, it is true that all the facts alleged in the two paragraphs of special answer in this case could have been proved under the general issue. Such facts were intended to meet the charge contained in the affidavit that appellant had violated the act in question, and to give in detail the circumstances constituting his defense. They were mere argumentative denials of the charge. The general issue could not have been evaded, since if the appellant had not tendered it the statute (§ 2072 Burns 1908, Acts 1905 p. 584, § 201) would have required it. In any view of the matter, it is questionable whether they were properly pleaded specially. Appellant could not, therefore, have been harmed by the action of the trial court in sustaining the State's demurrer. Neaderhouser v. State (1867), 28 Ind. 257; Williams v. State (1907), 169 Ind. 384, 82 N.E. 790.
Without setting out the amended affidavit in this opinion, it may be said again that it is substantially the same as the one set out in the former opinion of this court and there held good and based on a valid law. That holding must, for the reasons heretofore given, be adhered to and applied to the amended affidavit, unless some constitutional objection to the act in question of sufficient potency to overthrow it is now urged that was not presented and decided on the former appeal. The one objection that is presented by appellant as such and that was not presented and decided then, is that said act "is in violation of the 5th amendment to the Constitution of the United States, in this, that it deprives one class of citizens of property without due process of law." This objection is not well grounded, for this amendment operates exclusively in restriction of federal power, is a limitation on congress, and has no application to the states. Barron v. Mayor, etc. (1833), 32 U.S. 243, 8 L.Ed. 672; Thorington...
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