Johnson v. State, 31077

• Decision Date: 01 April 1969
• Docket Number: No. 31077,31077
• Citation: 246 N.E.2d 181,252 Ind. 79
• Parties: Leon JOHNSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 181

246 N.E.2d 181

252 Ind. 79

Leon JOHNSON, Appellant, v. STATE of Indiana, Appellee.

No. 31077.

Supreme Court of Indiana.

April 1, 1969.

Clifford M. DeWitt, Butler, Brown, Hahn & DeWitt, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., Rex P. Killian, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Chief Justice.

This is an appeal from a conviction for violation of the 1935 Firearms Act. It was charged that Appellant did 'carry a pistol on or about his person in a place not then and there his abode nor fixed place of business, and without a license therefore. * * *' Trial was by jury and Appellant was sentenced to one year in prison. Appellant alleges as grounds for reversal a procedural error, an error in the admission of certain evidence, and that there was insufficient evidence to sustain the verdict.

Appellant's first argument relies on the following facts: Appellant was arrested on March 28, 1963, and an affidavit was filed against him on May 23, 1963. On March 23, 1964, the prosecutor filed a Motion for Nolle Prosequi on the grounds that there was insufficient evidence to sustain a conviction. The trial court granted the motion without notice to Appellant. On August 10, 1965, another affidavit was filed against Appellant charging the same offense in identical terms. The trial court overruled Appellant's answer to Discharge and that ruling is now urged as erroneous for two reasons.

(1) Appellant argues that, in his absence, the trial court cannot grant a Motion to Nolle for insufficient evidence and then at a later date allow the same charge to be brought against him. It is said that in these circumstances the dismissal is equivalent to an acquittal and is, therefore, a bar to the second prosecution.

Appellant cites several cases in support of his position. The basic case is Kistler v. State (1879) 64 Ind. 371, where the prosecutor, in the defendant's absence and with the leave of the trial court unconditionally struck the cause from the docket. The trial court later allowed the prosecutor to reinstate the same indictment on the docket. This Court reversed saying,

'What we now decide in this case is, that the action of the prosecutor and court, in striking the case at bar from the docket unconditionally and absolutely, amounted to a nolle prosequi, and that the reinstatement of said cause, and the subsequent trial of defendant, were illegal acts.' 64 Ind. at 375.

In State v. Dix (1897), 18 Ind.App. 472, 48 N.E. 261, the trial court refused to allow the prosecutor to reinstate an indictment after it had been stricken from the docket with leave to reinstate. The Appellate Court affirmed saying,

'Reasoning from the case of Kistler v. State, supra, we think the action of the court, upon motion of the prosecuting attorney, and in the absence of the defendant, in striking the case from the docket, amounted, in effect, to a dismissal or nolle prosequi.' 18 Ind.App. at 474, 48 N.E. at 262.

In Southerland v. State (1911) 176 Ind. 493, 96 N.E. 583, this Court held that striking an indictment from the docket would not be treated as a nolle where the defendant had fled the jurisdiction. Those cases dealt with the status of an indictment after it was stricken from the docket. They held it was a nullity and could no longer function as the first pleading in a criminal prosecution. Since it was not in issue, those cases did not deal with the question of whether a new pleading or indictment, might have been obtained charging the same offense in identical terms.

In our view this case is controlled by Winters v. State (1927), 200 Ind. 48, 160 N.E. 294. There the prosecutor dismissed an affidavit in the city court, over defendant's objection, and filed a new affidavit charging the same offense in the circuit court. In affirming, this Court said:

'Appellant contends that where a prosecuting officer files a criminal charge against a person in a court having jurisdiction, he cannot dismiss the case over the objection of the defendant, or without the consent of the defendant having been obtained, and then 'refile the same charge' (i.e. begin another prosecution for the same offense) in another court of competent jurisdiction and there prosecute the defendant. He bases this contention upon the rulings of this court in the cases of State v. Woulfe (1877), 58 Ind. 17, 19; Kistler v. State (1878), 64 Ind. 371, and State v. Dix (1897), 18 Ind.App. 472, 48 N.E. 261, where voluntary dismissals of criminal proceedings against defendants by prosecuting attorneys in the absence of the defendants and without their consent were held to be equivalent to nolle prosequi. Such a prosecution cannot thereafter be reinstated over the objection of the defendant. Kistler v. State, supra. The question raised in the case at bar, however, is essentially different from that decided in the cases upon which appellant relies. Here, the prosecuting attorney did not seek to reinstate a prosecution where there had been a dismissal, but filed a new action. In such a case the dismissal or nolle prosequi entered before the jury was empaneled and sworn is not equivalent to an acquittal and does not bar the subsequent prosecution for the same offense.' 200 Ind. at 50, 160 N.E. at 294.

This has long been the law in this State. Joy v. State (1860), 14 Ind. 139; Halloran v. State (1881), 80 Ind. 586; Dye v. State (1891), 130 Ind. 87, 29 N.E. 771; Lynch v. State (1960), 240 Ind. 376, 165 N.E.2d 762.

Since the dismissal in the present case occurred prior to jeopardy attaching, there was no bar to refiling an affidavit charging the same offense in identical terms. The only constraint on this procedure is the Appellant's right to a speedy trial. To this question we now turn.

(2) Appellant argues that even if the prosecutor had the right to file the second affidavit the Appellant still had a constitutional right to a speedy trial under Art. I, § 12 of the Indiana Constitution. The Appellant alleges that the period from the filing of the first affidavit to the filing of the second is of such a length as to allow Appellant's discharge under Burns' Ind.Stat.Ann. § 9--1403 or Supreme Court Rule 1--4D, whichever is held to apply to this case. This constitutional right had been implemented by that statute and as of July 1, 1965, by the Supreme Court Rule which superceded the statute. The Appellant himself argues that the statute should apply to this case.

We agree that Appellant had a right to a speedy trial and that Burns' § 9--1403 should be applied to this case rather than Supreme Court rule 1--4D. The Rule went into effect July 1, 1965, and has been held to apply only where charges had been initiated after that date. State ex rel. Uzelac v. Lake Criminal Court (1965), 247 Ind. 87, 212 N.E.2d 21. The fact that the affidavit on which Appellant was convicted was filed after that date is not controlling. The proceeding which started the time running as far as a speedy trial is concerned occurred prior to that date.

The statute says:

'No person shall be held by recognizance to answer an indictment or affidavit, without trial, for a period embracing more than three (3) terms of court, not including the term at which a recognizance was first taken thereon, if taken in term time; but he shall be discharged unless a continuance be had upon his own motion, or the delay be caused by his act, or there be not sufficient time to try him at such third term; and, in the latter case, if he be not brought to trial at such third term he shall be discharged, except as provided in the next section.' Burns § 9--1403.

In applying this statute to this case we do not count the time between the filing of the first affidavit and the nolle, because Appellant does not show that during that time no continuance was had 'upon his own motion', or that the delay was not 'caused by his act'. In his unsworn brief in the trial court supporting his motion to reconsider the denial of discharge Appellant said:

'The defendant realizes that if he seeks to have the case dismissed on the grounds of delay in trial for more than three successive terms of the court, he must show that the delay complained of was caused by the State, and not by him, and that it was not had upon his request or upon his agreement. Sullivan v. State, 215 Ind. 343 (19 N.E.2d 739). * * * The defendant submits that in accordance with the Sullivan rule, counsel for the defendant in no way contributed to the delay in bringing this charge before this court, nor do counsel file frivolous, irrelevant, or immaterial pleadings thereto. * * *'

In his brief on appeal, p. 45, Appellant says:

'The Appellant feels that some mention should be made to the exception which existed not only under the old law, but is still maintained in the Supreme Court Rule 1--4D. This exception, of course, refers to the case in which the delay is in itself caused by the defendant's own act and therefore, is not totally chargeable to the State. This concept has been enunciated in the case of Sullivan v. State, 215 Ind. 343, 19 N.E.2d 739, where the Court held that the defendant must affirmatively show that the delay has not been a result of his own act. It seems clear to the Appellant and he would stress here, that the period of time occurring between the date of the granting of the Motion to Nolle on the original charge, March 23, 1964, and the date of the refiling of the same identical charge on August 10, 1965, was in no way the fault of the defendant and it is this period of time to which the Appellant directs the Courts attention and upon which he based his Motion to Discharge in the court. This period of time was imposed upon the Appellant through no act of his own and the Appellant maintains that he has met both the requirements of the old law, the Supreme Court rules as they exist today and the Sullivan rule, supra.'

We note that in his appeal brief Appellant does not refer to the time between the filing of the...