Harlan v. State

• Decision Date: 29 March 1921
• Docket Number: 23,789
• Citation: 130 N.E. 413,190 Ind. 322
• Parties: Harlan et al. v. State of Indiana
• Court: Indiana Supreme Court

130 N.E. 413

190 Ind. 322

Harlan et al. v. State of Indiana

No. 23,789

Supreme Court of Indiana

March 29, 1921

From Gibson Circuit Court; S. L. Vandeveer, Judge.

Prosecution by the State of Indiana against John Harlan and another. From a judgment of conviction, the defendants appeal.

Affirmed.

Morton C. Embree, for appellants.

U. S Lesh, Attorney-General, and Summer Kenner, for the State.

Willoughby C. J. Townsend, J., absent.

OPINION

Willoughby, C. J.

This is an action instituted in the court of a justice of the peace by filing an affidavit in three counts charging the appellants with keeping a devise for gaming, with raffling, and with gaming. The affidavit was filed on September 5, 1919. The defendants were arrested and brought before the justice of the peace. The cause was then continued until September 8, 1919, when upon a plea of "not guilty" the defendants were tried by jury, which returned a verdict as follows: "We, the jury disagree, Fred Hall, Foreman." The jurors were discharged and a new trial date set for September 27, 1919, at 10 o'clock a.m. On September 27, 1919, a jury was called and the trial commenced and the evidence partly heard, when the cause was continued until September 29, 1919, when the trial was completed, and the jury returned a verdict as follows: "We, the jury, find each of the defendants guilty as charged in the affidavit, and assess each of their fines at the sum of $ 59.16. C. H. White, Foreman." Judgment was rendered on the verdict on the same day, September 29, 1919, and the defendants prayed an appeal to the Gibson Circuit Court and filed their appeal bond as required by law, which bond was approved by the court.

In the Gibson Circuit Court, the appellants, November 8, 1919, each filed a motion for a discharge from further prosecution, and on January 12, 1920, each defendant filed a similar motion. Each of the motions stated the following grounds: (1) "That the judgment rendered against them before Robert M. Morton, a justice of the peace is void." (2) "That this court has no jurisdiction to try this action." (3) "That this defendant has been once in jeopardy in respect to the matters charged in this action."

Each of said motions was accompanied by the following memorandum: "The transcript in this action shows on its face that the judgment rendered against this defendant is for $ 59.16, an amount in excess for the jurisdictional fine before a justice of the peace, and it is therefore void. Since the jurisdiction of this court depends upon the jurisdiction of the justice of the peace, and the justice of the peace performed a void act, this court can acquire no jurisdiction by reason of the void judgment. This defendant has been once in jeopardy, having submitted to a trial before a jury, which resulted in a void judgment. The jury was discharged without rendering a verdict upon which a valid judgment could be based."

Each of these motions was overruled, and each of the appellants at the time excepted. Each of the appellants filed a second motion for a discharge from further prosecution. Each of such motions for a discharge assigned the following reasons therefor: (1) "That it appears upon the face of the transcript of the justice of the peace in said cause, that the defendant has been once in jeopardy for the offense charged in the affidavit in said cause." (2) "That it appears upon the face of the transcript of the justice of the peace in said cause that this court has no jurisdiction of said cause." Each of these motions for a discharge was accompanied by the following memorandum:

"The transcript of the justice of the peace in this cause shows on its face that on the 8th day of September, 1919, in the court of Robert M. Morton, a Justice of the Peace, that being a court of competent jurisdiction, this defendant was put upon trial by jury, upon the same affidavit that is the basis of this action; that such affidavit is sufficient in form and substance to sustain a conviction; that such jury was charged with his deliverance; that such jury returned a verdict; that said verdict was void, and was effective in law as a verdict of acquittal; and that such jury was discharged without having arrived at a valid verdict. These facts constitute former jeopardy.

"The transcript of the justice of the peace in this cause further shows on its face that on the 27th day of September, 1919, in the court of Robert M. Morton, a justice of the peace, that being a court of competent jurisdiction except as hereinafter stated, this defendant was again put upon trial by a jury upon the same affidavit that is the basis of this action; that such affidavit is sufficient in form and substance to sustain a conviction; that such jury was charged with his deliverance; that such jury returned a verdict; that by said verdict the jury assessed a fine in excess of its powers; that such verdict was void, and was effective in law as a verdict of acquittal; and that such jury was discharged without having arrived at a valid verdict. These facts also constitute former jeopardy.

"Because of the facts above stated the court of the justice of the peace had no jurisdiction to try this defendant the second time. Moreover, the court of the justice of the peace lost jurisdiction of this action by reason of the fact that the second jury therein returned a verdict greater in amount than was authorized by law, and therefore void, and such jury was discharged. The jurisdiction of this court is dependent upon the jurisdiction of the court of the justice of the peace. This court therefore has no jurisdiction of this action."

Substantially the same motions, that each of the appellants be discharged from further prosecution in the action, were filed on January 20, 1920, and the reasons assigned were the same as in the former motions. Appellant claims that the verdict returned in the first trial of the cause, "We, the jury, disagree," was no verdict at all, and that the effect of it was to acquit the defendant. We agree with the defendants that the verdict was a nullity, but it does not necessarily follow that the effect was to acquit the defendant. It has been held that where a defendant in a criminal prosecution is put upon trial on a valid indictment, before a jury lawfully impaneled and sworn, and the jury is discharged before a verdict is returned, without good cause and without his consent, he has been put in jeopardy within the constitutional meaning of that term, and that the discharge of the jury in such a case is equivalent to a verdict of not guilty of the offense charged. Hensley v. State (1886), 107 Ind. 587, 8 N.E. 692, and cases there cited. However, in the same case it was held that in pleading former jeopardy it is not sufficient to show that jeopardy has once attached to the defendant, but it must also be shown that the jeopardy so attaching was not discharged by operation of law or waived by some act of the defendant. In Kingen v. State (1874), 46 Ind. 132, it was held that when the defendant was in court in person and by counsel when a juror was discharged and neither objected nor excepted to such discharge, the discharge must be held to have been with the consent of the defendant, and subsequently putting the defendant on trial was not error. The discharge of a jury in a criminal case must be excepted to at the time by the defendant, or he will be deemed to have waived any objection thereto. Long v. State (1874), 46 Ind. 582.

The case of Fowler v. State (1882), 85 Ind. 538, is directly in point. There the jury in a justice's court was discharged by the justice, not having agreed, and appellant therein claimed that such discharge was wrongful, and he, having been in jeopardy, could not be again placed on trial. The Supreme Court in overruling this contention said: "If it should be held that the discharge of the jury entitled the appellant to his discharge, it is clear that, as he did not object to the action of the justice, nor move for his discharge, but on the contrary acquiesced in that officer's ruling by demanding of him another jury, he waived his right, if any he had, to afterwards insist that the trial bars another prosecution for the same offense."

The bill of exceptions in the instant case shows that on the first trial before the justice of the peace both the defendants and their attorneys were present when the jury was discharged, and neither the defendants nor their attorneys made any objection to the discharge of the jury. Under such circumstances, the defendants waived their right, if they ever had any, to insist that such trial bars a subsequent trial on the same charge.

Appellants insist that the justice of the peace lost jurisdiction in the cause, because on the second trial the jury returned a verdict for an amount greater than was authorized by law, and that such verdict was void and was effective in law as a verdict of acquittal, and that such jury was discharged without having arrived at a valid verdict, and that these facts constitute former jeopardy. It does not appear from the record that either the defendants or their attorneys objected to such discharge of the jury. Justices of the peace have such jurisdiction in a criminal case as is given to them by statute, and no other. Wakefield v. State (1854), 5 Ind. 195; State v. Morgan (1878), 62 Ind. 35; Nace v. State (1889), 117 Ind. 114, 19 N.E. 729.

But appellants say: "The transcript of the justice of the peace in this case shows upon its face that upon the occasion of the second trial before the justice of the peace, the appellants were put upon trial before a jury in a court of competent jurisdiction, upon an affidavit that is sufficient in form and substance to sustain a conviction that the jury was charged...