Boswell v. State

• Decision Date: 13 May 1887
• Citation: 111 Ind. 47,11 N.E. 788
• Parties: Boswell v. State.
• Court: Indiana Supreme Court

111 Ind. 47

11 N.E. 788

Boswell

v.State.

Supreme Court of Indiana.

May 13, 1887.

Appeal from circuit court, Huntington county.Kenner & Dille, for appellant. Vaughan, Cobb & Watkins and the Attorney General, for the State.

MITCHELL, J.

On the second day of April, 1886, the grand jury of Huntington county returned an indictment into the Huntington circuit court against Andrew J. Boswell, for an alleged assault and battery upon one Butler. The defendant filed a special plea, the substance of which was that at a date prior to the returning of the indictment, he had been charged, in an affidavit filed with a justice of the peace of that county, with the commission of the same identical offense with which he stood charged in the indictment, and that, upon a warrant duly issued, he had been arrested and taken before the justice with whom the affidavit had been lodged, and required to plead to the charge. It was further averred that, being so arraigned, and required to plead, in open court, and in the presence of the prosecuting attorney, the defendant pleaded guilty to the charge, which plea was accepted by the court, and that thereupon, with the consent of the prosecutor, the case was continued until the next day at 9 o'clock a. m., and a subpœna issued for Thad. Butler, the injured party. It is alleged that the witness Butler appeared at the time appointed, and the defendant being ready in court, demanding a hearing upon his plea so entered and accepted, the prosecuting attorney voluntarily dismissed the prosecution before the justice. The affidavit, and a transcript of the proceedings before the justice, are made a part of the special plea. The court sustained a demurrer to the plea, and, upon a plea of not guilty, the defendant was tried, and assessed with a fine of $25 and costs.

The only question involved is, did the proceedings before the justice put the appellant in jeopardy, so as to protect him from another prosecution for the same offense? It is conceded that a sufficient affidavit was filed with a justice of the peace having competent jurisdiction to hear and determine the charge. After being brought before the justice, and required to plead, a plea of guilty was entered and accepted by the court, with the consent of the state. Afterwards, the injured party being in attendance, the defendant standing on his plea of guilty, and demanding a hearing, the state voluntarily dismissed the prosecution.

It is too well settled to be open to doubt that, if a defendant has been put upon trial for a criminal offense, or, as is sometimes said, if a competent jury has been “charged” with the offense, and a nolle prosequi, or anything equivalent thereto, is afterwards entered without his consent, he cannot be again put upon trial for the same offense. Hensley v. State, 107 Ind. 587, 8 N. E. Rep. 692; Kingen v. State, 46 Ind. 132;Hines v. State, 24 Ohio St. 134; Bish. Crim. Law, § 1016; Whart. Crim. Pl. & Pr. §§ 517, 447; Moore, Crim. Law, § 400. A voluntary dismissal under such circumstances is equivalent to an acquittal. “If, in a particular case, the jeopardy has attached, though for an...