Boyle v. State

• Decision Date: 09 December 1960
• Docket Number: No. 29782,29782
• Citation: 170 N.E.2d 802,241 Ind. 565
• Parties: Paul P. BOYLE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 802

170 N.E.2d 802

241 Ind. 565

Paul P. BOYLE, Appellant, v. STATE of Indiana, Appellee.

No. 29782.

Supreme Court of Indiana.

Dec. 9, 1960.

Paul P. Boyle, Sullivan, Roy A. Pope, B. Howard Caughran, Indianapolis, Norval K. Harris, Sullivan, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Asst. Atty. Gen., Paul B. Wever, Jr., Deputy Atty. Gen., for appellee.

BOBBITT, Chief Justice.

LANDIS, J., has heretofore disqualified himself in this case.

BOBBITT, C. J., and JACKSON, J., are of the opinion that the judgment of the trial court should be reversed and the appellant granted a new trial, while ARTERBURN and ACHOR, JJ., are of the opinion that the judgment of the trial court should be affirmed.

The four judges participating being equally divided at the last term of court and being still equally divided at this term, the judgment of the trial court is affirmed, without costs. Acts 1881 (Spec.Sess.), ch 38, § 654, p. 240, being § 2-3232, Burns' 1946 Replacement. State ex rel. Thomas v. Williams, 1958, 238 Ind. 407, 151 N.E.2d 499.

Separate opinions covering material points in the case arising from the record follow.

BOBBITT, Chief Justice (separate opinion).

Appellant was charged by affidavit with having driven and operated an automobile upon United States Highway No. 41 in Sullivan County, Indiana, on December 21, 1956, 'While Under the Influence of Intoxicating Liquor,' under Acts 1939, ch. 48, § 52, p. 289, being § 47-2001, Burns' 1952 Replacement, tried by jury, found guilty as charged and fined in the sum of $100.

We are confronted at the outset with appellant's assignment of error No. 1, 'The court erred in finding against the defendant [appellant herein] on his plea in bar by reason of former jeopardy.'

Such plea in bar, omitting formal parts, is as follows:

'Comes now, Paul P. Boyle, Defendant and moves the Court that the defendant be found not guilty for the reason that on April 29, 1957, said defendant was tried in the City Court of Terre Haute, Indiana before Hon. John Hoke Beasley, special judge, on the identical charge herein and was found not guilty, the only difference in the affidavits being that in this affidavit, defendant is charged with operating a motor vehicle in Sullivan County, Indiana while in the case tried in the City Court of Terre Haute, Indiana in Vigo County, Indiana, he was charged with operating a motor vehicle in Vigo County, Indiana; that the offense of driving a motor vehicle while under the influence of intoxicating liquor is an indivisible offense; that a citizen of this state cannot be tried in more than one county for the identical offense with which he has been charged and acquitted in another county.'

Appellant was charged by one affidavit, in the Terre Haute City Court (Vigo County), with driving under the influence of intoxicating liquor ¹ on December 21, 1956; and by another affidavit in two counts, one charging him with leaving the scene of a personal injury accident, ² and the other with leaving the scene of a property damage accident. ³ These affidavits were prepared by the deputy prosecuting attorney of Vigo County, signed by a sergeant of the Indiana State Police, and filed in Vigo County on December 22, 1956.

Appellant was tried in the City Court of Terre Haute, Vigo County, Indiana, beginning on April 24, 1957, on all three charges. He was found not guilty of driving under the influence of intoxicating liquor, and leaving the scene of a personal injury, and found guilty of leaving the scene of the accident wherein property damage was done.

The affidavit charging appellant with driving under the influence of intoxicating liquor on December 21, 1956, in Sullivan County, and which is the basis of this appeal, was signed by a State police officer on April 26, 1957, and subsequently filed in the Sullivan Circuit Court.

The record of the hearing on the plea in bar discloses the following evidence which was adduced at the trial in Terre Haute.

At about 7:45 p. m. on December 21, 1956, Ned Woodward, a State police officer, received a radio call from the State Police Post at Terre Haute, Indiana, to be on the lookout for a two tone brown sedan, an Oldsmobile or Buick, which was involved in a hit-and-run accident on United States Highway No. 41 just sough of Terre Haute, Indiana, and a 'little later' the car was identified by radio as being a 'brown 1956 Buick dragging a piece of chrome.'

A road block was set up on United States Highway No. 41 at the 'north edge of Sullivan.' About 15 or 20 minutes later appellant drove into Sullivan on United States Highway No. 41 in a blue and pink Buick with a 'piece of metal hanging from the right rear fender.' He was first stopped by a city policeman, Gerald Skinner, who had received a radio call from the Sullivan County sheriff's office to intercept the car described in the State police radio message received by officer Woodward. Officer Skinner placed appellant under arrest for leaving the scene of an accident and about 'a minute later' appellant was again arrested by officer Woodward for leaving the scene of an accident.

Officer Woodward testified, as a witness for defendant-appellant, that appellant told him at the time of his arrest in Sullivan that he had 'driven from Terre Haute by himself.'

Officer Skinner, as a witness for defendant-appellant, also testified that when arrested appellant said, 'What have I done?', and he (Skinner) replied, 'Leaving the scene of an accident, hitting a State Trooper who was supposed to have been a State Trooper up at Terre Haute.' This witness further testified that he was certain when he arrested appellant that he had the car for which the pick-up order was issued by the State Police Post in Terre Haute, and that he arrested appellant on information received over the police radio. Officer Skinner also testified that appellant was driving 'alone in the middle of U. S. 41' and was 'under the influence of intoxicating liquor, and was intoxicated' when he got out of his car at the time of his arrest in Sullivan.

Burel Huff, a police officer of the City of Sullivan, who was with officer Skinner at the time of appellant's arrest in Sullivan, testified substantially as did officer Skinner.

Harold Roseberry testified that appellant was under the influence of intoxicating liquor when he saw him in front of his home in Sullivan at approximately 8:30 p.m. on December 21, 1956, and later at the sheriff's office in the Sullivan County jail, and further that he saw appellant when he was taken back to Vigo County, and that he was under the influence of intoxicating liquor then.

Witnesses Skinner, Woodward and Huff all testified at the hearing on the plea in bar that the testimony which they would give, if called to testify in appellant's trial at Sullivan where he was about to be tried on the affidavit filed against him in Sullivan County on April 27, 1957, would be the same as that which they gave at appellant's trial in the City Court in Terre Haute where he was tried on April 24th and 25th, 1957, and found not guilty of operating while under the influence on December 21, 1956. However, Skinner and Woodward testified, when recalled to testify as witnesses for the State at the hearing on the plea in bar, that they would have additional evidence to present in the trial in Sullivan which they were not allowed to present in the trial at Terre Haute.

Robert Brown, a deputy prosecuting attorney of Vigo County, testified at the hearing on the plea in bar as a witness for defendant-appellant, in part, as follows:

'Q. On December 22nd, 1956, I'll ask you to tell the Court if there was an affidavit filed in the City Court of Terre Haute, Vigo County, Indiana, against Paul Boyle charging him with the offense of driving upon the public highways of Vigo County, Indiana, while the said Paul Boyle was under the influence of intoxicating liquor? A. It was filed on that day.

'Q. Did you assist in the preparation of that affidavit and the filing thereof? A. I drew it up myself.

'Q. And you may tell the Court whether or not that affidavit was based on information furnished you by the State Police of Indiana? A. Yes, it was.

'Q. And to the effect that Mr. Boyle had been guilty of operating his automobile, a Buick automobile upon the public highways of Vigo County, to-wit: Indiana Highway 41, south of Terre Haute? A. Yes, that was what the affidavit charged. I don't recall the exact words--that in effect was it.

'Q. You may tell the Court whether the information given you by the State Police was in substance that he had been arrested in Sullivan County on December 21, 1956, about 8:00 or 8:30 o'clock? A. Yes sir, that was the information.

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'Q. Tell the Court the information in substance you had upon which you based this affidavit? A. I remember Sergeant Vincent Vance was one of the State Troopers there. There were two or three others at the time, and the story that I got from the officers was that Mr. Boyle's automobile had been involved in an accident, as I recall a few yards south of the intersection of U. S. 41 and South Seventh Street, south of the City of Terre Haute, and that shortly thereafter--I don't recall now whether a half hour, or an hour, it was not over an hour that Mr. Boyle had been arrested by officer Woodward, of the State Police Department, and either a Sullivan Policeman, or a Sullivan Deputy Sheriff, and that he was intoxicated at the time of his arrest in Sullivan.

'Q. I'll ask you if they also gave you information that Mr. Boyle had told them that he drove alone from Terre Haute to Sullivan, if you remember?

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'A. As to whether or not they told me that Mr. Boyle had made the statement that he had driven alone from Terre Haute to Sullivan, I don't recall; but I do know that one of the officers mentioned that Mr. Boyle had told the police that he had been driving the car from Terre Haute.

'Q. Was Mr. Boyle tried on...