Blocher v. State

• Decision Date: 16 April 1912
• Docket Number: 22,003
• Parties: Blocher v. State of Indiana
• Court: Indiana Supreme Court

98 N.E. 118

177 Ind. 356

Blocher v. State of Indiana

No. 22,003

Supreme Court of Indiana

April 16, 1912

From Cass Circuit Court; John S. Lairy, Judge.

Prosecution by the State of Indiana against Charles A. Blocher. From a judgment of conviction, the defendant appeals.

Affirmed.

Frank V. Guthrie, for appellant.

Thomas M. Honan, Attorney-General, Edwin Corr, Thomas H. Branaman and James E. McCullough, for the State.

Cox, J Myers, J., did not participate in the decision of this cause.

OPINION

Cox, J.

Appellant was indicted for the crime of forgery. He moved to quash the indictment, and his motion was overruled. Upon a plea of not guilty he was put upon trial before a jury. At the close of the evidence for the State, the trial court reconsidered its ruling on appellant's motion to quash the indictment and sustained it, and discharged the jury. Thereafter an affidavit charging the same offense was filed by the prosecuting attorney, and upon it appellant was tried and convicted. From this conviction he appeals, and by proper assignments of error presents numerous questions. The first question, which is presented in several ways, arises out of the contention that appellant was put in jeopardy by being put upon trial upon the indictment, and could not, without violating his constitutional rights, be again tried for the same offense. The decision of this question must be against appellant. That appellant was not conducted into jeopardy by the partial trial on the indictment, if that indictment was not sufficient to sustain a conviction, is too obvious and well settled to need citation of authority or precedent to support the proposition. But it is now claimed by counsel for appellant that the former indictment was a good and sufficient charge of the offense, and that, therefore jeopardy attached. We are not required to determine whether the indictment was good or bad, for conceding it to have been good, appellant, having induced the action of the trial court in holding it bad, by his motion to quash it, which the court sustained, thereby waived any right to claim that he had been put in jeopardy under it. The immunity from a second jeopardy is a constitutional right which a defendant may waive. Appellant invoked, by his motion to quash, the action of the trial court to lift him out of the peril he was then in, and he cannot now take advantage of that action, if erroneous, to relieve himself from the second jeopardy, for he waived his right. Joy v. State (1860), 14 Ind. 139, 148; Hensley v. State (1886), 107 Ind. 587, 8 N.E. 692; Miller v. State (1904), 33 Ind.App. 509, 71 N.E. 248; Ex parte Winston (1875), 52 Ala. 419; Brown v. State (1900), 109 Ga. 570, 34 S.E. 1031; Commonwealth v. Gould (1858), 78 Mass. 171; State v. Priebnow (1884), 16 Neb. 131, 19 N.W. 628; Von Rueden v. State (1897), 96 Wis. 671, 71 N.W. 1048; State v. Hart (1885), 33 Kan. 218, 6 P. 288; Jones v. Commonwealth (1906), 124 Ky. 26, 97 S.W. 1118; People v. Meakim (1891), 61 Hun 327, 15 N.Y.S. 917; Stone v. State (1909), 160 Ala. 94, 49 So. 823, 135 Am. St. 69 and note; 1 Bishop, New Crim. Law § 1027, clause 4.

Nor can the fact that appellant, upon the court reconsidering its ruling and sustaining the motion to quash, objected to the discharge of the jury short of an acquittal, put him in a better position to claim former jeopardy. Ex parte Winston, supra; Commonwealth v. Gould, supra; Jones v. Commonwealth, supra. The indictment being quashed, there was nothing to go forward upon--no charge for the jury to try.

It is next contended that the court erred in overruling appellant's motion to quash the affidavit on which he was convicted. For the reason given in Scott v. State (1911), 176 Ind. 382, 96 N.E. 125, this question is not presented. Neither the record nor appellant's brief shows a motion to quash, stating any grounds therefor. Moreover, the objection to the affidavit which is now made to this court is not valid under the holding in Agar v. State (1911), 176 Ind. 234, 94 N.E. 819.

Among the causes for a new trial, the overruling of which is assigned as error, were two based on the action of the trial court in sustaining objections of the State to two questions put to a medical witness called for the defense. These questions called for expert testimony relating to the effect of the excessive drinking of intoxicating liquor on the human mind as affecting the question of motive or intent. We need not determine whether the court was right or wrong in this action, for not only this witness, but two others, after the ruling complained of, were permitted to give testimony fully covering the matter involved in the questions, and appellant was not harmed by the ruling.

The court did not commit error in admitting in evidence, over appellant's objection, the check alleged to have been forged by appellant, for it was identical with that set out in the affidavit.

Complaint is made of several instructions given by the court, and also of the court's refusal to give a number tendered by appellant. An examination of the instructions under which the verdict of the jury was returned, shows that the jury was very fully and fairly instructed. Instruction four, given by the court, by request from the State, involves the question of reasonable doubt. It did not state the law incorrectly, and anything it lacked in a comprehensive definition of reasonable doubt was fully and favorably stated in instruction thirteen, given at appellant's request.

Instruction five, given at the request of the State, is criticized in two particulars. It stated the essential elements of the offense of forgery as applied to the charge against appellant, and told the jury that if it found the facts established beyond a reasonable doubt, it should convict. The first objection to the instruction is that the words "from the evidence" are omitted from the instruction, and it is...