Barrett v. State

• Decision Date: 13 January 1911
• Docket Number: No. 21,725.,21,725.
• Parties: BARRETT v. STATE.
• Court: Indiana Supreme Court

175 Ind. 112

93 N.E. 543

BARRETT

v.STATE.

No. 21,725.

Supreme Court of Indiana.

Jan. 13, 1911.

Appeal from Circuit Court, Sullivan County; Chas. E. Henderson, Judge.

Charles E. Barrett was convicted of violating the wide entry law applicable to coal mines, and he appeals. Affirmed.

Chas. E. Barrett and Fred E. Barrett, for appellant. Jas. Bingham, A. G. Cavins, E. M. White, and Wm. H. Thompson, for the State.

COX, J.

This prosecution of appellant, as the agent of the Vandalia Coal Company, for an alleged violation of the act approved March 9, 1907 (Laws 1907, c. 197), commonly called by coal miners and operators the “wide entry law,” has been in this court before. State v. Barrett, 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 the defendant, the appellant herein, with a violation of it was good, and that the 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. The appellant unsuccessfully assailed the amended affidavit by a motion to quash and then 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.

The appellant treats this case as a new one, merely similar to the case of State v. Barrett, supra; and he argues that, “in view of the state amending the affidavit, a new actionor prosecution was commenced, and therefore the decision in the former case cannot be said to be res adjudicata.” This contention cannot prevail, for the amendment was authorized by the Criminal Code (section 2043, Burns' Ann. St. 1908); and, 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, 166 Ind. 211, 214, 76 N. E. 544, 1005. 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 of law are the law of the case binding upon all the courts and the parties through all of the stages of the cause following, whether the questions arise in the same manner or not. City v. Humprey (1886) 106 Ind. 146, 147, 6 N. E. 337;Lillie v. Trentman (1891) 130 Ind. 16, 17, 29 N. E. 405;Board v. Bonebrake (1896) 146 Ind. 311-313, 45 N. E. 470;Brunson v. Henry (1898) 152 Ind. 310-312, 52 N. E. 407;Pittsburgh, etc., Co. v. Collins (1907) 168 Ind. 467-472, 80 N. E. 415.

The only errors which are well assigned by appellant are (1) the action of the trial court 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 of these paragraphs were not materially different from the facts set out in the special answer of appellant, which this court held bad on the former appeal for not alleging facts which brought him within the exemption of the proviso of the act; that is, for not alleging facts showing that his mine was in the block coal field or devoted in whole or in part to mining block coal. And under the law as long and well settled, and announced in the cases above 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 appellant could have proven under the general issue; they were intended to meet the charge contained in the affidavit that appellant had violated the act in question, to give in detail the circumstances constituting his defense, they were mere argumentative denials of the charge, and the general issue could not be evaded. If the appellant had not tendered it, the statute would have forced it. It is questionable whether they were properly pleaded specially in any view of the matter. He 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 the amended affidavit out 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 above 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 which is presented by appellant as such, and which was...