Foran v. State

• Decision Date: 01 July 1924
• Docket Number: 24,367
• Citation: 144 N.E. 529,195 Ind. 55
• Parties: Foran v. State of Indiana
• Court: Indiana Supreme Court

144 N.E. 529

195 Ind. 55

Foran v. State of Indiana

No. 24,367

Supreme Court of Indiana

July 1, 1924

1. INTOXICATING LIQUORS.---Former Jeopardy.---Evidence.---Sufficiency.---Statutes.---In an action for unlawfully disposing of intoxicating liquors and maintaining a room where intoxicating liquors were sold, in violation of 8356d, 8356t Burns' Supp. 1921, Acts 1921 p 736, on issue of former jeopardy tried under general plea of not guilty (2069 Burns 1914, Acts 1905 p. 584) evidence held insufficient to show the alleged offenses were identical. p 57.

2. CRIMINAL LAW.---Former Jeopardy.---Plea of Not Guilty.---Necessary Proof.---The defense of former jeopardy may be proved under a plea of not guilty (2069 Burns 1914 Acts 1905 p. 584) but the rules of evidence governing the trial and the proof required are the same as if a special plea of former jeopardy had been filed. p. 60.

3. CRIMINAL LAW.---Former Jeopardy.---"Same Transaction Test."---"Identity of Offense" Test.---On the issue of former jeopardy the "same transaction test" has been repudiated in this state, and the courts lean to the "identity of offense" test which is in harmony with the constitutional guaranty, and is that the second charge must be the same identical act and crime as that for which the accused had been placed in jeopardy and the test whether if what is set out in the second indict- ment had been proved under the first, could there have been a conviction. p. 60.

4. INTOXICATING LIQUORS.---Unlawful Sale.---Separate Offenses.---Each sale of intoxicating liquors in violation of the statute is a separate and distinct offense, even though the sales occurred on the same day. p. 61.

5. CRIMINAL LAW.---Plea of Former Jeopardy.---Necessary Proof.---To bar a prosecution by a plea of former jeopardy proof that the accused had been indicted, and either acquitted or convicted since the date of the offense now alleged against him, held insufficient, as he must prove that the former acquittal or conviction was for the same offense now charged. p. 62.

6. CRIMINAL LAW.---Former Jeopardy.---Burden of Proof.---The burden of proof is on the accused to sustain a plea of former jeopardy. p. 63.

From Marion Criminal Court (54,193); James A. Collins, Judge.

Prosecution by the State of Indiana against Patrick Foran. From a judgment of conviction, the defendant appeals.

Affirmed.

Holmes & McCallister, for appellant.

U. S. Lesh, Attorney General, and Mrs. Edward Franklin White, Deputy Attorney General, for the State.

OPINION

Travis, J.

Appellant was convicted of violating the Prohibition Law as charged by an affidavit in three counts, originally filed in the city court of the city of Indianapolis on December 28, 1922, which charged the offenses of unlawfully (count 1) furnishing and disposing of intoxicating liquor to two persons on December 27, 1922; (count 2) keeping intoxicating liquor with an intent to sell, etc., on December 28, 1922; (count 3) maintaining a common nuisance--a room where intoxicating liquors were kept for sale, etc.,--on December 28, 1922; in violation of sections 4 and 20, Acts 1917 p. 15, as amended Acts 1921 p. 736, §§ 8356d, 8356t Burns' Supp. 1921. From a judgment upon the general finding of guilty by the court appellant appeals, and assigns as error the action of the trial court in the overruling of his motion for a new trial, for the causes that the finding of the court is not sustained by sufficient evidence and is contrary to law; and makes the sole proposition that he has been put twice in jeopardy for the same offense.

The appellant did not make a formal plea of autrefois acquit, but tried the issue of former jeopardy under the general plea of not guilty. § 2069 Burns 1914, Acts 1905 p. 584, § 198. Appellant in his evidence to support his plea of former jeopardy under the general plea, introduced in evidence the following stipulation: "It is agreed by and between counsel for the state and counsel for the defendant in open court in the presence of the defendant, that defendant's exhibit No. 1 is the affidavit upon which the defendant Foran was tried in the city court on the 20th day of December, 1922, and it is further agreed he was found not guilty as charged." The affidavit referred to as exhibit No. 1 in the stipulation was filed in the city court of the city of Indianapolis December 20, 1922, and consisted of six counts which charged appellant with the violation of the Prohibition Law on December 20, 1922, with having unlawfully (1) sold, etc., intoxicating liquor; (2) manufactured, transported, and possessed intoxicating liquor, and for keeping intoxicating liquor with intent to sell, etc.; (3) possessed a certain still for the manufacture of intoxicating liquor intended for use in violation of law; (4) sold on that date a certain alcoholic preparation for beverage purposes; (5) maintained a common nuisance--a place where intoxicating liquors were kept for sale, etc.; and, (6) received intoxicating liquor from a carrier. Exhibit No. 1, which was offered and read in evidence, included the endorsement of the judge of the court on the face of the affidavit, "Discharged. D. O. W., Judge," which initials stood for D. O. Wilmeth, Judge.

Appellant on his own behalf testified that he was arrested December 19, 1922, on which day a charge of "Blind tiger" was placed against him, and that on the following day, December 20, 1922, he was tried in the city court of the city of Indianapolis, and that after the hearing of the testimony at that trial, he was discharged by the court.

The affidavit which was first filed in the city court and which is exhibit No. 1, charged the sale of intoxicating liquor but did not name any person to whom such liquor was sold. The second affidavit which was filed December 28, charged that appellant unlawfully furnished and disposed of intoxicating liquor to Walter Miles and William Sweeney. In the trial of the case at bar, Walter Miles testified that he purchased three or four drinks of whisky of the appellant December 19, 1922, and that he did not buy any liquor from appellant between the twentieth and the twenty-seventh days of December, 1922; Sweeney testified that he bought five or six drinks of liquor of the appellant December 19, 1922, and that Miles was with him when he purchased it. All the evidence on behalf of the state was in support of the offense charged in the first count of the affidavit, which was concerning sales to each of the two persons named only, and on December 19, 1922. No evidence was introduced at the trial of the case at bar, to show what the evidence was at the trial in the city court under the first affidavit, to prove the fact that the offense alleged in the first affidavit was identical with the offense alleged in the second affidavit.

As appellant points out in his brief, the evidence affirmatively shows that the whole transaction out of which this prosecution arose occurred on December 19 1922, but it does not follow, as alleged in the next point by appellant, that the evidence equally affirmatively shows that the offenses charged by an affidavit against appellant which was filed in the city court of the city of Indianapolis December 20, 1922, were based upon the same transaction upon which the case at bar is based. Outside of the evidence shown by the stipulation and exhibit No. 1, there is no evidence in the record, as disclosed by appellant's brief, to show when the offenses charged by the first affidavit known as exhibit No. 1, were committed. The offenses charged in the first affidavit may have been committed at any time previous to the filing of the affidavit within the period of the statute of limitations, if they were not committed on the exact date alleged. The first affidavit did not allege to whom the sales of intoxicating liquor were made, but alleged that appellant did "unlawfully...