Klein v. State

• Decision Date: 20 June 1901
• Parties: KLEIN v. STATE.
• Court: Indiana Supreme Court

157 Ind. 146

60 N.E. 1036

KLEIN

v.STATE.

Supreme Court of Indiana.

June 20, 1901.

Appeal from circuit court, Vanderburg county; H. A. Mattison, Judge.

John Klein was convicted of burglary, and he appeals. Affirmed.

Andrew J. Clark, for appellant. Dune & Curry, W. L. Taylor, Atty. Gen., Merrill Moores, and C. C. Hadley, for the State.

HADLEY, J.

Appellant was tried and convicted of burglary upon an affidavit and information which were filed in the Vanderburg circuit court, January 18, 1900, and which, in substance, charged that appellant and others named, on the 5th day of May, 1898, at said county and state, did then and there unlawfully, forcibly, and feloniously, in the nighttime, burglariously break and enter into the store of one August Kornblum, there situate, with intent then and there, and thereby, to unlawfully, forcibly, feloniously, and burglariously take, steal, and carry away the personal goods and chattels of said August Kornblum then and there being. Appellant challenges the rulings of the court (1) in sustaining the state's demurrer to his plea in abatement, (2) in overruling his motion to quash, (3) for a new trial, and (4) in arrest of judgment. For plea in abatement he set up that he is a citizen of the state of Ohio; that on the 10th day of May, 1898, the prosecuting attorney of Vanderburg county filed in this (circuit) court an information, based upon a sufficient affidavit, charging appellant with the same crime of burglary charged in this information; that said former affidavit and information fully and correctly charged the appellant with the crime of burglary according to the laws of the state of Indiana; that on September 18, 1899, said prosecuting attorney, with leave of court, entered a nolle prosequi in said cause as to the appellant, without appellant's knowledge or consent; that from the time of filing said former affidavit and information, to wit, May 10, 1898, more than three terms of court had elapsed without a trial of appellant; that the affidavit and information upon which the prosecution is had (filed January 18, 1900) charged precisely the same offense, in the same terms, as that charged in the former affidavit and information; that at the time of filing the affidavit and information he was not in custody or on bail for this or other offense; that he was not tried under the former proceeding, and no indictment or information against him had been quashed; that no cause against him has been appealed to the supreme court and reversed on account of a defect in the indictment; that no public offense had been committed by this defendant when this prosecution was begun; and that he was not then under the charge of having committed the offense stated in the information. The plea is in a single paragraph, but seems to count upon three distinct grounds for an abatement of the prosecution: (1) Former jeopardy; (2) failure of the state to accord him a trial within three terms after his arrest, under the provisions of section 1852, Burns' Rev. St. 1894 (section 1783, Horner's Rev. St. 1897; section 1783, Rev. St. 1881); and (3) want of authority to prosecute by affidavit and information.

With respect to the first ground, it is radically bad for two reasons-First, because the plea of former jeopardy is a plea in bar, and not pleadable in a plea in abatement; and, second, because it is wholly insufficient either as a plea in bar or abatement for failure to allege that appellant had been placed upon his trial on the former information. A defendant is not in legal jeopardy, within the meaning of the constitutional restriction, until he has been put upon his trial before a court of competent jurisdiction, upon an indictment or information which is sufficient, in form and substance, to sustain a conviction. Cooley, Const. Lim. (6th Ed.) p. 399, and cases cited. See Rowland v. State, 126 Ind. 517, 26 N. E. 485;Dye v. State, 130 Ind. 87, 29 N. E. 771.

The second ground is equally faulty for the absence of an averment that the delay in his trial for more than three terms of court was not caused by his act.

Third. “It shall not be necessary in an information to state the reason why the proceeding is by information instead of indictment. And in a prosecution for felony by information it shall not be necessary to prove the facts showing the right so to prosecute by information, unless such facts are put in issue by a verified plea in abatement.” Section 1802, Burns' Rev. St. 1894 (section 1733, Horner's Rev. St. 1897; section 1733, Rev. St. 1881). It is therefore essential to a plea in abatement, challenging the right of the state to prosecute by information, to specifically allege the facts relied upon to show that the state is proceeding without warrant of law. The state is authorized to prosecute, by information, for all offenses, except treason and murder, in the following cases: First, when the defendant is in custody or on bail, and the court is in session, and the grand jury is not in session; second, when an indictment has been quashed, and the grand jury for the term is not in session; third, when a cause has been appealed to the supreme court, and reversed on account of a defect in the indictment; fourth, when a public offense has been committed, and the party charged (accused) is not under indictment therefor, and the court is in session, and the grand jury has been discharged for the term. Section 1748, Burns' Rev. St. 1894 (section 1679, Horner's Rev. St. 1897; section 1679, Rev. St. 1881). If any one of these conditions exist, the state may prosecute by information, and, to make a plea in abatement sufficient against such a prosecution, it must affirmatively show that no one of these conditions did exist at the time the prosecution was begun. State v. Drake, 125 Ind. 367, 25 N. E. 434;Lankford v. State, 144 Ind. 428, 43 N. E. 444. This plea falls far short of negativing the conditions of the fourth clause. The averments are that no public offense had been committed by the defendant at the time of filing the information, and that he was not then under the charge (legal charge) of having committed the offense stated in the information. The force and scope of these averments are made manifest by the preceding allegations of the plea, to the effect that the crime charged in this information is the identical crime charged against him by a previous information as having been committed on the 5th day of May, 1898, and which former information had been nolled, and was not pending...