Dye v. State

CourtSupreme Court of Indiana
Citation29 N.E. 771,130 Ind. 87
PartiesDYE v. STATE.
Decision Date15 October 1891

OPINION TEXT STARTS HERE

Appeal from circuit court, Union county; D. W. MCKEE, Special Judge.

Information against Ferdinand Dye for receiving stolen goods. Judgment of conviction. Defendant appeals. Reversed.

Defendant's answer in abatement to the information set forth that at the time the information was filed he was not in custody nor under bail for the offense as charged in the information; that a grand jury had formerly found an indictment against him for the same offense; that he was arrested, and gave a bond for appearance; that thereafter, on appearing for trial, the court dismissed the case on motion of the state. On demurrer the answer in abatement was overruled, and defendant excepted. At the trial the state, against the defendant's objection, introduced admissions of the thief as to conversationsand arrangements between him and defendant with reference to the disposal of the stolen property. Defendant excepted to the admission of this testimony, and to the court's refusal of his request for an instruction to the jury not to consider it.

T. D. Evans, for appellant. George W. Pigman and A. G. Smith, for the State.

ELLIOTT, J.

The appellant has specified as error that the court “overruled his answer in abatement.” This specification is not a proper one, for no specification in the assignment of errors is sufficient unless it indicates with clearness and precision the ruling assailed. The ruling which the appellant probably intended to specify is that made in sustaining the demurrer to his answer in abatement, but he has failed to specify that ruling, and, if we strictly applied the law, we should be compelled to hold that his specification is utterly ineffective. We have, however, deemed it best to examine the questions sought to be presented by the specification mentioned.

The answer in abatement is bad. Two propositions support this conclusion: First, before jeopardy attaches a prosecution may be dismissed, although an indictment has been preferred; second, after a nolle prosequi is entered, and a prosecution ended, the accused may be prosecuted by information, if the grand jury has been discharged, and the court is in session. Rowland v. State, 126 Ind. 517, 26 N. E. Rep. 485; State v. Drake, 125 Ind. 367, 25 N. E. Rep. 434; Sovine v. State, 85 Ind. 576. It is declared by the authorities that the admissions of the thief are not admissible in evidence against the...

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