Causey v. State, 569S122

• Decision Date: 18 February 1971
• Docket Number: No. 569S122,569S122
• Citation: 256 Ind. 19,266 N.E.2d 795
• Court: Indiana Supreme Court
• Parties: James CAUSEY, Appellant, v. STATE of Indiana, Appellee.

Page 795

266 N.E.2d 795

256 Ind. 19

James CAUSEY, Appellant, v. STATE of Indiana, Appellee.

No. 569S122.

Supreme Court of Indiana.

Feb. 18, 1971.

Sam Mirkin, South Bend, for appellant.

Theodore L. Sendak, Atty. Gen., Edward Squier Neal, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Chief Justice.

This is an appeal from the St. Joseph Circuit Court. Defendant was charged by affidavit with Robbery by Putting in Fear and Commission of Robbery While Armed with a Deadly Weapon. The cause was submitted to trial by jury and on October 31, 1968, the jury found the defendant not guilty on Count II, Commission of Robbery While Armed with a Deadly Weapon, but found the defendant guilty on Count I of the lesser included offense of theft.

On November 14, 1968, the defendant filed a motion for a new trial. Said motion was subsequently granted by Special Judge Edward V. Minczeski on December 5, 1968. The State of Indiana filed, and the court granted, a motion to dismiss Count II of the affidavit (Commission of Robbery While Armed with a Deadly Weapon).

A second trial by jury on Count I (Robbery by Putting in Fear) again resulted in a finding of guilty of the lesser included offense of theft.

The defendant contends that his retrial below has violated the constitutional prohibition against subjecting him to double jeopardy for the same offense as prohibited by the Fifth Amendment to the United States Constitution and the due process clause of the Fourteenth Amendment to the United States Constitution.

Burns Indiana Statutes Anno. (1956 Repl.), § 9--1902, provides: 'The granting of a new trial places the parties in the same position as if no trial had been had; the former verdict cannot be used or referred to, either, in the evidence or in the argument.' Present case law in Indiana supports the proposition that under the above quoted statute, when a defendant initiates an appeal asking for a new trial and the appeal discloses error, the original trial is treated as a nullity and defendant thereby waives any claim to double jeopardy. Cichos v. State (1965), 246 Ind. 680, 208 N.E.2d 685, reh. den., 210 N.E.2d 363; Layton v. State (1968), Ind., 240 N.E.2d 489. Furthermore, in Layton v. State (1968), Ind., 240 N.E.2d 489, 493, we said:

'In 1956 Mr. Justice Black reiterated the principle in Griffin v. People of State of Illinois (1956), 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891, that 'a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review.' It therefore follows that the legislature may grant an appeal upon such terms and conditions and with such restrictions as it sees fit. For a convicted defendant to secure an appeal for review in Indiana, he is required in most cases to ask to ask for a new trial in order to properly present alleged errors. Since this case does not present a Federal question, we find the law in Indiana to be that where an appellant asks for a new trial by way of a motion for a new trial, he waives the former jeopardy of the prior trial and double jeopardy in event his request for a new trial is granted. It is the law in this state that he must take his new trial without qualification or conditions and he stands in the position, if the new trial is granted, as if he had not...