Miller v. State

• Decision Date: 10 June 1904
• Docket Number: No. 5,123.,5,123.
• Citation: 71 N.E. 248,33 Ind.App. 509
• Parties: MILLER v. STATE.
• Court: Indiana Appellate Court

33 Ind.App. 509

71 N.E. 248

MILLER

v.STATE.

No. 5,123.^*

Appellate Court of Indiana, Division No. 1.

June 10, 1904.

Appeal from Circuit Court, Miami County; J. N. Tillett, Judge.

Jacob P. Miller was convicted of an assault, and he appeals. Affirmed.

Cox, Reasoner & O'Hara and Albert Ward, for appellant. C. W. Miller, Atty. Gen., L. G. Rothschild, W. C. Geake, and C. C. Hadley, for the State.

BLACK, C. J.

The appellee, Jacob P. M. Miller, was prosecuted for the offense defined by section 1983, Burns' Ann. St. 1901, which provides: “Whoever, having the present ability to do so, unlawfully attempts to commit a violent injury on the person of another, is guilty of an assault,” etc. The affidavit and information charged that on the 9th day of March, in the year 1903, in the county of Miami, and the state of Indiana, the appellant, naming him, did then and there unlawfully assault William Sharp, by then and there unlawfully attempting, etc., pursuing substantially the language of the statute; contrary, etc. Besides entering a plea of not guilty, the appellant filed a special plea, on which issue was taken, wherein he set up his prior acquittal, before a certain justice of the peace of the same county, of a charge of having, on the 9th day of March, 1903, unlawfully, by words, signs, and gestures, attempted to provoke William Sharp to commit an assault and battery upon the appellant, the said William Sharp then and there having the ability to do so; contrary, etc.; the proceedings before the justice being set forth in the plea, whereby it appeared, after an affidavit of William Sharp preferring such charge against Jacob Miller, that on the 18th day of March, 1903, the appellant voluntarily appeared in court “and pleaded not guilty, as the constable had made no return of service before or at the hour set for trial, and as he had inserted names of witnesses above the justice's signature, and the affidavit was not sufficient in not summoning the complaining witnesses nor stating the name of the defendant in full, on motion of the defense I dismissed the case from my docket and discharged the defendant, Jacob P. M. Miller, from custody.” It was further stated in the proceedings before the justice of the peace, that “at the time” the defendant pleaded and asked for a speedy trial, by his attorney named; that there were no returns of warrant or subpœnas in the court, and names of witnesses could not, therefore, be inserted in proper place on the docket; that another attorney named, who had volunteered in court on behalf of the state, examined witnesses as they were presented and sworn, naming four persons, and that the witnesses were cross-questioned by the person named as the attorney for the defendant; “and on testimony given, and other gross irregularities, I made the above-stated dismissal and discharge of defendant.” It was further alleged, in substance, in the special plea of former acquittal, that said judgment, discharge, and acquittal still remained in full force and effect, and that the Jacob Miller so charged, arraigned, and acquitted was the appellant, and that “the said provoke or attempted provoke charged by words, signs, and gestures, of which the said Jacob Miller was charged, acquitted, and discharged, as aforesaid, by said justice, and the assault of which he is now charged in the present affidavit and information, are one and the same misdemeanor, and not other or different misdemeanor or offense,” etc. No question has been made as to the plea of former jeopardy, and the propriety of trying the issue made thereon along with the issue made by the plea of not guilty has not been questioned.

It is assigned here that the court below erred in overruling the appellant's motion for a new trial. Upon the merits of the charge tried under the plea of not guilty the evidence authorized a conviction. There was conflict in the testimony, but the whole evidence was of such character that this court would not be warranted in interfering with the conclusion of the jury that there was an unlawful assault.

It is strongly urged that the evidence showed the former jeopardy of the appellant. The former prosecution was based on section 2067, Burns' Ann. St. 1901, which provides: “Whoever by words, signs or gestures, provokes or attempts to provoke another, who has the present ability to do so, to commit an assault or assault and battery upon him, is guilty of criminal provocation,” etc. The right to rely upon a former jeopardy may be waived, and waiver will be implied where, after jeopardy has attached, the defendant moves to quash or dismiss the indictment, and upon such motion the indictment is quashed or dismissed. In such case there may be a new prosecution, whether the indictment in the former prosecution was good or bad; and where the defendant is acquitted upon his own request, based upon the alleged ground that the indictment is defective, he will not be heard to complain on a second prosecution that he was in jeopardy under the former prosecution. In Joy v. State, 14 Ind. 139, 152, it was said that, if a defendant moves in arrest, or to vacate a judgment already rendered, he will be presumed to waive any objection to being put a second time in jeopardy; and if he succeeds in causing judgment to be arrested on a verdict rendered on a good indictment, the court supposing it to be bad, he may be again placed on trial. “The reason of this is that the proceedings were had at his instance, which resulted in setting aside the verdict. It was for his benefit, and he is presumed to waive any future peril he may incur, in view of the advantage h...