State v. Reed

• Decision Date: 05 June 1907
• Docket Number: No. 20,976.,20,976.
• Citation: 168 Ind. 588,81 N.E. 571
• Parties: STATE v. REED.
• Court: Indiana Supreme Court

168 Ind. 588

81 N.E. 571

STATE

v.REED.

No. 20,976.

Supreme Court of Indiana.

June 5, 1907.

Appeal from Circuit Court, Hancock County; Robt. L. Mason, Judge.

Adolphus Reed was charged with selling intoxicating liquors to a person in a state of intoxication, and filed a plea of former jeopardy. From a judgment overruling a demurrer to the plea, the state appeals. Reversed, with instructions to sustain the demurrer.

Chas. L. Tindall, for the State. Jonas P. Walker and A. C. Van Duyn, for appellee.

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 section 573 of an act concerning public offenses, approved March 10, 1905 (Acts 1905, p. 720, c. 169). Appellee was tried and convicted before the justice of the peace 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 said section 573, 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 section 14 of article 1 of the Constitution of this state, and cannot again be put in jeopardy for the same offense. Hensley v. State, 107 Ind. 587, 589, 590, 8 N. E. 692, and cases cited; Boswell v. State, 111 Ind. 47, 49, 11 N. E. 788;Gillespie v. State (last term) 80 N. E. 829, and cases cited; Gillett's Criminal Law (2d Ed.) § 31. By said section 573, supra, of the statute, 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, 79 Ind. 488;Harvey v. State, 80 Ind. 142;Massey v. State, 74 Ind. 368;Stevenson v. State, 65 Ind. 409; Gillett's Criminal 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 prosecution, if dismissed, after jeopardy has attached, which as we have said is equivalent to an acquittal (Boswell v. State, 111 Ind. 47, 49, 11 N. E. 788), will not be a bar to a second prosecution (1 Bishop, New Criminal Law [8th Ed.] §§ 1052, 1053; Wharton's Criminal Pleading & Practice [9th Ed.] §§ 459, 460, 461, 471, 472; 17 Am. & Eng. Ency. of Law, 597; Boswell v. State, 111 Ind. 47, 49, 11 N. E. 788;State v. Elder, 65 Ind. 282, 285, 286, 32 Am. Rep. 69;Smith v. State, 85 Ind. 553, 557;Davidson v. State, 99 Ind. 366, 368, and authorities cited; Durham v. People, 4 Scam. [Ill.] 172, 39 Am. Dec. 407).

1. Bishop's New Criminal Law says on this subject: Section 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.” Section 1053: “(1) The case of variance is merely illustrative. In other cases also this test is equally applicable and nearly universal. Thus (2) if the acquittal is by reason of the indictment being brought in the wrong county, it will not bar fresh proceedings in the right one. So (3) 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) one acquitted of petit...