Mann v. State, 25799.

• Citation: 187 N.E. 343,205 Ind. 491
• Decision Date: 31 October 1933
• Docket Number: No. 25799.,25799.
• Parties: MANN v. STATE.
• Court: Indiana Supreme Court

205 Ind. 491

187 N.E. 343

MANN

v.STATE.

No. 25799.

Supreme Court of Indiana.

Oct. 31, 1933.

Appeal from Criminal Court, Marion County; Frank Symmes, Special Judge.

On petition for rehearing.

Petition denied.

For former opinion, see 186 N. E. 283.

Thomas H. Fittz, of Indianapolis, for appellant.

James M. Ogden, Atty. Gen., and Merl M. Wall, Deputy Atty. Gen., for the State.

MYERS, Chief Justice.

Appellant, on petition for a rehearing, insists that we decide his question of former jeopardy. On our former consideration of this case, we noticed that point in appellant's brief, but the grounds upon which we placed our decision in reality decided the question of former jeopardy against appellant without going into the question in detail.

The question of former jeopardy may, prior to the trial, be presented by a plea in bar (Klein v. State, 157 Ind. 146, 60 N. E. 1036;Barker v. State, 188 Ind. 263, 267, 120 N. E. 593), the sufficiency of which is for the court (Harlan v. State, 190 Ind. 322, 336, 130 N. E. 413), or by evidence during the trial under a plea of not guilty (Foran v. State, 195 Ind. 55, 144 N. E. 529;Earle v. State, 194 Ind. 165, 142 N. E. 405). But in this case neither of these remedies was invoked.

The record discloses that appellant was tried upon an affidavit signed by Marie Bowman and filed January 30th charging appellant with first degree rape on one Alice Bowman. A trial on this affidavit was had in April following, and on May 1st the court found appellant guilty of assault and battery with intent to commit rape, and judgment was entered accordingly. Various motions were then filed by appellant and overruled. An appeal to the Supreme Court was granted, and a bill of exceptions containing the evidence approved by the court was filed June 22d. The motion to discharge on the ground of former jeopardy was filed June 24th, 68 days after the close of the trial and 54 days after the entering of final judgment.

The facts in support of the motion for his discharge rest upon an affidavit made by Harry McGlenn charging appellant with assault and battery with intent to commit rape on one Alice Bowman and filed December 20th. On the following January 30th the cause was called for trial. The witnesses for both the state and defendant were present in court. Thereupon the prosecuting attorney, by consent of the court and over the objection and exception of the defendant, entered a nolle prosequi, and the defendant was discharged. It is evident from this record that counsel for appellant had no...