State v. Reed

• Citation: 81 N.E. 571,168 Ind. 588
• Decision Date: 05 June 1907
• Docket Number: 20,976
• Parties: The State v. Reed
• Court: Supreme Court of Indiana

81 N.E. 571

168 Ind. 588

The State v. Reed

No. 20,976

Supreme Court of Indiana

June 5, 1907

From Hancock Circuit Court; Robert L. Mason, Judge.

Prosecution by the State of Indiana against Adolphus Reed. From a judgment for defendant, the State appeals.

Reversed.

James Bingham, Attorney-General, Charles L. Tindall, Prosecuting Attorney, A. G. Cavins, H. M. Dowling and E. M. White, for the State.

Jonas P. Walker, Arthur C. Van Duyn and John Lockridge, for appellee.

OPINION

Monks, J.

Appellee was charged by affidavit, before a justice of the peace, with selling intoxicating liquor to a "person at the time in a state of intoxication, knowing him to be in a state of intoxication," in violation of § 573 of an act concerning public offenses, approved March 10, 1905 (Acts 1905, pp. 584, 720, § 2219 Burns 1905). He was tried and convicted, and appealed to the court below, where he filed a plea in bar, averring, in substance, that before the affidavit in this case was filed, but on the same day appellee had been placed upon his trial, upon an affidavit charging him with giving intoxicating liquors, in violation of § 2219, supra, to the same person to whom he is charged with selling intoxicating liquor in this case that before said trial was concluded, but after jeopardy had attached, said justice of the peace, on motion of the prosecuting attorney, without the consent of appellee dismissed said charge of giving away, etc. That said charge upon which appellee had been placed upon trial as aforesaid is for the same offense which is stated and charged in the affidavit in this cause.

It is well settled in this State that when a defendant in a criminal prosecution is put upon his trial on a valid charge in a court having jurisdiction of the subject-matter and the parties, and the cause is dismissed over his objection, the same is equivalent to an acquittal, and he has been put in jeopardy, within the meaning of § 14, article 1, of the Constitution of this State, and cannot again be put in jeopardy for the same offense. Hensley v. State (1886), 107 Ind. 587, 589, 590, 8 N.E. 692, and cases cited; Boswell v. State (1887), 111 Ind. 47, 49, 11 N.E. 788; Gillespie v. State (1907), ante, 298, and cases cited; Gillett, Crim. Law (2d ed.), § 31.

By § 2219, supra, the selling, bartering, or giving away of intoxicating liquor to a person at the time in a state of intoxication, knowing him to be in a state of intoxication, is prohibited. Said section defines three separate crimes--selling, bartering, and giving away under the conditions mentioned--and upon proof of one the defendant cannot be convicted of either of the others. Kurz v. State (1881), 79 Ind. 488; Harvey v. State (1881), 80 Ind. 142; Massey v. State (1881), 74 Ind. 368; Stevenson v. State (1879), 65 Ind. 409; Gillett, Crim. Law (2d ed.), § 592a.

When the facts necessary to convict upon a second prosecution would not necessarily have convicted upon the first prosecution, then the first, if dismissed, after jeopardy has attached, which, as we have said, is equivalent to an acquittal (Boswell v. State [1887], 111 Ind. 47, 49, 11 N.E. 788), will not be a bar to a second prosecution. 1 Bishop, Crim. Law (8th ed.), §§ 1052, 1053; Wharton, Crim. Pl. and Pr. (9th ed.), §§ 459-461, 471, 472; 17 Am. and Eng. Ency. Law (2d ed.), 597; Boswell v. State, supra; State v. Elder (1879), 65 Ind. 282, 285, 286, 32 Am. Rep. 69; Smith v. State (1882), 85 Ind. 553, 557; Davidson v. State (1885), 99 Ind. 366, 368, and authorities cited; Durham v. People (1843), 4 Scammon (Ill.) 172, 39 Am. Dec. 407. In 1 Bishop, Crim. Law (8th ed.), §§ 1052, 1053, it is said on this subject: "§ 1052. * * * The test is, whether, if what is set out in the second indictment had been proved under the first, there could have been a conviction; when there could, the second cannot be maintained; when there could not, it can be. And--§ 1053. (1) The case of variance is merely illustrative. In other cases also, this test is equally applicable and nearly universal. Thus--(2) Wrong County. If the acquittal is by reason of the indictment's being brought in the wrong county, it will not bar fresh proceedings in the right one. So--(3) Other Person Injured. An acquittal for the larceny of the goods of one person will not bar an indictment for the same larceny charging them to be another's. Again--(4) Larceny and False Pretenses. One acquitted of petit larceny, then indicted for obtaining the same goods by false pretenses, may on the former evidence, if in law incompetent for conviction on the former charge, be found guilty of the latter. Also--(5) Larceny and Conspiracy--Or Receiving. After an acquittal for larceny, the defendant may be convicted of obtaining the same chattels through a conspiracy with third persons, or of receiving them as stolen goods."

This court said in Smith v. State supra, on page 557: "The true test to determine the sufficiency or insufficiency of a plea of former acquittal as a bar to the pending prosecution, is...