Holt v. State
| Decision Date | 01 March 1945 |
| Docket Number | 28025. |
| Parties | HOLT v. STATE. |
| Court | Indiana Supreme Court |
Rehearing Denied March 13, 1945.
Appeal from Vanderburgh Circuit Court; William C. Welborn, Special judge.
Theodore Lockyear and Paul Wever, both of Evansville, for appellant.
James A. Emmert, Atty. Gen., Frank E. Coughlin, 1st Deputy Atty Gen., and Forrest P. Jones, Deputy Atty. Gen., for appellee.
The appellant, by affidavit, was charged with inflicting an injury, while engaged in the commission of a robbery. Through his attorney he filed notice under the statute, §§ 9-1631, 9-1632, 9-1633. Burns' 1942 Replacement, §§ 2263-1 2263-2, 2263-3, Baldwin's 1935 Supp., of his intention to offer evidence of an alibi and called upon the State to fix the time and place of the alleged crime. Prior to the service of notice the appellant had been arraigned and entered a plea of 'not guilty', and the cause was then set for trial. The prosecuting attorney did not file his answer to the appellant's request until February 9, 1944, although a copy had been delivered on the previous day to his counsel
The trial was commenced on February 9, 1944, the jury was impaneled and two witnesses testified, and then the appellant's attorney requested the court to continue the matter for eight days in order that he might prepare his case and secure the presence of his witnesses. The court granted the continuance, discharged the jury and then reset the matter for February 17, 1944. Prior to the latter date the appellant filed a plea of former jeopardy. To this plea the State of Indiana filed a demurrer, which was sustained. The trial proceeded and the appellant was found guilty of the crime charged and sentenced to life imprisonment. At the trial evidence of former jeopardy was offered and received, and the question of former jeopardy is presented: 1. By asserting that the court erred in sustaining the demurrer to the plea of former jeopardy. 2. By asserting that the verdict is not sustained by sufficient evidence and is contrary to law.
Our court has held no question is presented on the claimed error in sustaining the demurrer to the plea of former jeopardy, because the evidence of former jeopardy may be presented under the plea of not guilty. Marks v. State, 1942, 220 Ind. 9, 40 N.E.2d 108.
It is contended that a defendant may stand mute and take advantage of irregular or erroneous rulings or directions of the court. To support his contentions the appellant relies upon Armentrout v. State, 1938, 214 Ind. 273, 15 N.E.2d 363; Gillespie v. State, 1907, 168 Ind. 298, 80 N.E. 829; and Pizano v. State, 1886, 20 Tex.App. 139, 54 Am.Rep. 511. In each of the above cases, there was an objection to the discharge of the jury. In the Armentrout case it is held, in effect, that consent to the discharge of the jury by the defendant, renders the defense of former jeopardy ineffectual as a bar to another trial for the same offense. We are of the opinion that the above cases were correctly decided. The instant case can, upon the facts, be readily distinguished from each of those cases. Here, the appellant, although present in court, did not object to the discharge. Furthermore, the discharge of the jury was part of the relief granted on appellant's own motion for a continuance, although the motion did not request such discharge.
This court has held that where a defendant is in court and there is no showing that he objected to the discharge of the jury he is presumed to have consented. Kingen v. State, 1874, 46 Ind. 132. In that case on page 134, it was said: ...
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...(1933); Foreman v. State, 214 Ind. 79, 14 N.E.2d 546 (1938); Armentrout v. State, 214 Ind. 273, 15 N.E.2d 363 (1938); Holt v. State, 223 Ind. 217, 59 N.E.2d 563 (1945); State v. Soucie, 234 Ind. 98, 123 N.E.2d 888 (1955); State v. Taylor, 235 Ind. 632, 137 N.E.2d 537 (1956); Johnson v. Stat......
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