Earle v. State
| Decision Date | 29 January 1924 |
| Docket Number | 24,218 |
| Citation | 142 N.E. 405,194 Ind. 165 |
| Parties | Earle v. State of Indiana |
| Court | Indiana Supreme Court |
From Vigo Circuit Court; Frank C. Wade, Special Judge.
Jack Earle was convicted of a violation of the prohibition law and he appeals.
Reversed.
Miller & Kelley, for appellant.
U. S Lesh, Attorney-General, and Mrs. Edward Franklin White Deputy Attorney-General, for the State.
The jury, in the court below, returned a verdict finding appellant guilty as charged in the second count of an affidavit filed in that court December 21, 1921, and obviously predicated upon the particular provision of the statute following: "It shall be unlawful for any person to manufacture, transport, possess, sell, barter, exchange, give away, furnish or otherwise dispose of any intoxicating liquor." Acts 1921 p. 736, § 8356d Burns' Supp. 1921, § 4, Acts 1917 p. 15.
Appellant met the charge thus preferred, first, by filing what he termed a plea in abatement to which, for want of facts, a demurrer was sustained; second, special answer of former jeopardy and request in writing for a separate trial of that issue prior to a trial on the general issue. This request, over the objection and exception of appellant, was denied by the court. He was then arraigned and pleaded not guilty. The jury returned its verdict May 31, 1922, and on June 5, 1922, appellant moved in arrest of judgment, which motion on the same day was overruled. Seven days later appellant filed his motion for a venire de novo, and also his motion for a new trial, and both were then overruled, and judgment rendered on the verdict assessing a fine of $ 500 and six months imprisonment in the Vigo county jail.
Appellant is here seeking to avoid this judgment by alleging that certain rulings and acts of the trial court were erroneous. He first insists that the court erred in sustaining the state's demurrer to his plea in abatement. This pleading, while denominated a plea in abatement, was, in fact, an application to suppress certain evidence which the state proposed to introduce against him. This evidence consisted of an exhibit of certain intoxicating liquor and statements by the sheriff of Vigo county and one of his deputies as to what they saw and did in the way of taking charge of an unattended automobile containing intoxicating liquor while the same was standing on the public highway near the traveled way and a short distance north of North Terre Haute. Generally speaking, it is averred that these officers, without the authority of a search warrant or warrant for the arrest of any one, upon seeing the automobile stop and persons leave it, thereupon took possession of the same and upon a search thereof found that it contained intoxicating liquor, which the state proposed to introduce in evidence, as well as the statements of the officers; that these acts of the officers were in violation of the unreasonable search and seizure clauses of the Constitution of this state and of the Constitution of the United States. But, there are no facts pleaded connecting appellant with the automobile or the liquor or showing that he had any interest in either. Under these circumstances he cannot be heard to complain even though the alleged acts of the officers were unauthorized and illegal. However, we are not to be understood as approving or disapproving these acts. It is sufficient to say that the pleading in question fails to state facts showing that the alleged illegal search and seizure concerned the person, house, papers and effects of appellant. Consequently, he must be regarded as a stranger to the asserted wrong, and therefore without an interest supportive of his present contention. Walker v. State (1924), post 402, 194 Ind. 402, 142 N.E. 16.
Appellant next insists that the court erred in overruling his motion and request for a separate trial upon his answer in bar. The theory of this answer, while not carefully prepared, was former jeopardy. It was filed March 15, 1922, and, in substance, averred that this appellant, on November 11, 1921, in the city court of the city of Terre Haute, Indiana, was charged with the identical offense with which he is here charged and for which the state is proposing to try him; that on December 20, the day fixed for the trial of appellant on the charge filed against him in the city court, and before the Honorable Robert R. Erwin, Special Judge, witnesses were sworn and evidence heard on the merits and the cause continued until the next day, when further evidence was introduced and the cause again continued on motion of the state until December 23, when, on motion of the prosecuting attorney, it was dismissed, and appellant held on the affidavit filed in the circuit court December 21.
Appellant's answer in bar was not tested by a demurrer, motion or otherwise. Still, the state is here insisting that it was insufficient for want of facts. While the question as to whether the answer states facts sufficient is not in reality before us, nevertheless, we have examined the same and reached the conclusion that under our present liberal rule of pleading the facts averred and unchallenged before the trial would admit evidence sufficient to sustain the defense of former jeopardy. With these remarks we pass the point made by the state to the question of the right of appellant to have the defense of former jeopardy tried in advance of his trial on the charge to which he pleaded not guilty.
Our Criminal Code, § 2069 Burns 1914, Acts 1905 p. 584, § 198, permits an accused to plead the general issue orally and thereunder to prove former acquittal or former conviction, or any matter of defense except insanity, or he "may plead specially any matter of defense." In the instant case appellant attempted at least to plead specially former jeopardy in bar of the charge preferred against him in the circuit court. Former jeopardy being equivalent to an acquittal (State v. Reed [1907], 168 Ind. 588, 81 N.E. 571) it follows that a good plea of former jeopardy is the equivalent of pleading former acquittal and a defense which, under the statute, may be pleaded specially.
In Clem v. State (1873), 42 Ind. 420, 13 Am Rep. 369, the court, referring to the statute (2 G. & H. p. 413, § 97), "in all criminal prosecutions the defendant may plead the general issue orally, which shall be entered on the minutes of the court, and under it every...
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