Kelly v. State

• Decision Date: 24 November 1947
• Docket Number: No. 28316.,28316.
• Citation: 75 N.E.2d 537,225 Ind. 577
• Parties: KELLY et al. v. STATE.
• Court: Indiana Supreme Court

225 Ind. 577

75 N.E.2d 537

KELLY et al.

v.STATE.

No. 28316.

Supreme Court of Indiana.

Nov. 24, 1947.

Clovis Kelly and others were convicted of assault and battery, and they appeal.

Affirmed.Appeal from Vanderburgh Circuit Court; E. Menzies Lindsey, Special judge.

Lockyear & Lockyear, of Evansville, for appellants.

Cleon H. Foust, Atty. Gen., of Indianapolis, for appellee.

STARR, Judge.

This appeal is from a judgment of conviction for assault and battery.

The record discloses that after the prospective jurors were seated in the jury box on the date of trial, but before the voir dire examination had begun, the appellants made an oral motion that they be discharged from further prosecution and that they go acquitted by reason of having theretofore been placed in jeopardy for the identical offense charged in the affidavit in this cause in the City Court of Evansville, and at the same time asked that they be permitted to offer evidence in support of this motion. This request was denied and the motion overruled. From this ruling alone this appeal is taken.

Our statutes provide:

‘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, the defendant may show and prove on the trial that he has before had judgment of acquittal, or been convicted or pardoned for the same offense, or any matter of defense except insanity. But the defendant may plead specially any matter of defense.’ § 9-1132, Burns' 1942 Replacement.

Former jeopardy is a matter of defense. It will be noted from the above quoted statute that this defense may be pleaded specially as a plea in bar or the same may be shown and proved under the general denial. This statute has no application when the facts showing former jeopardy appear of record in the same case. Under such circumstances this question can be raised by a motion to discharge as here attempted or in any other appropriate manner. 22 C.J.S., Criminal Law, § 277. In the case before us, however, extrinsic matters were relied upon in this motion.

This oral motion cannot be considered as a special plea in bar as such a plea must be in writing. Our statutes governing criminal procedure in courts of record are silent as to whether this plea must be in writing. Under such circumstances the established practice and rules of procedure of the courts in criminal cases will operate so far as they are not inconsistent with the applicable rules of pleading and practice in civil actions. Ewbank's Indiana Criminal Law, 2d Ed., § 301.

Ever since written pleas have been in use a special plea in bar has been commonly tendered in writing. Although in England it is, or has been, sometimes...