Stoner v. State

• Citation: 35 N.E. 133,7 Ind.App. 620
• Decision Date: 31 October 1893
• Docket Number: 621
• Parties: STONER v. THE STATE
• Court: Court of Appeals of Indiana

35 N.E. 133

7 Ind.App. 620

STONER v. THE STATE

No. 621

Court of Appeals of Indiana

October 31, 1893

From the La Porte Circuit Court.

Judgment affirmed.

J. E McCullough, L. P. Harlan, M. W. Weir and W. E. Higgins, for appellant.

A. G Smith, Attorney-General, Mortimer Nye and C. B. Andrews, for the State.

OPINION

ROSS J.

The appellant was indicted, tried and convicted, in the court below, for an assault and battery upon one Philander H. Ackley. From that judgment of conviction this appeal is prosecuted, and appellant asks a reversal for error of the court in overruling his motion for a new trial.

The facts in this case, as gathered from the statement of counsel, are, that on the 17th day of March, 1891, the appellant was arrested and taken before Jacob Folant, a justice of the peace of Center township, La Porte county, Indiana, upon an affidavit filed with said justice, charging appellant with having committed an assault and battery upon the person of one Philander H. Ackley. A change of venue was taken from said Folant, and the cause sent for trial to Daniel Shaw, a justice of the peace of Union township, La Porte county, Indiana, where the cause was tried before a jury; and the following verdict returned: "We, the jury, find the defendant guilty as he stands charged in the affidavit, but, in our opinion, the punishment we are authorized to affix is not adequate to the offense." Said justice thereupon held the appellant to bail in the sum of two hundred dollars, for his appearance in the La Porte Circuit Court. On the 9th day of September, 1891, he was indicted by the grand jury, and, on November 30, 1891, was put on trial upon said indictment. The only question presented on this appeal relates to the ruling of the court in excluding the papers and record of the proceedings before Justices Folant and Shaw, offered by the appellant. Counsel very earnestly argue, in support of their contention, that the decision of this case necessarily involves the constitutionality of section 1636, R. S. 1881, which reads as follows: "Such justice or jury, if they find the prisoner guilty of a misdemeanor, shall assess his punishment; or if, in their opinion, the punishment they are authorized to assess is not adequate to the offense, they may so find, and, in such case, the justice shall hold such prisoner to bail for his appearance before the proper court, or commit him to jail in default of such bail."

In this contention of counsel, we can not agree, but think the only question presented is whether or not the appellant has been put in jeopardy twice for the same offense.

The Supreme Court, in Butler v. State, 113 Ind. 5, 14 N.E. 247, says: "A prisoner, having entered into such a recognizance as that provided for in section 1636, is simply required to appear in the court named in his recognizance to answer such charge as may be preferred against him, whether by indictment or by affidavit and information, as an original proceeding in that court, and not for further trial on the complaint filed with the justice."

The justice's court in such an event, is simply a court of inquiry to determine whether or not the accused shall be bound over. In the upper court, he is not tried upon the affidavit filed before the justice, and in recognizing him to the circuit court it is not necessary for the justice to file a transcript of the papers and proceedings with the clerk, for the reason that any further prosecution in the circuit court does not depend upon the proceedings had before the justice. Butler v. State, supra.

It is so well settled that it is wholly unnecessary to cite authorities, that when an accused person has been put on trial upon a valid indictment before a competent jury, jeopardy attaches, and whether convicted or acquitted, he can not be tried again for the same offense upon a new or different charge.

At just what stage of the trial jeopardy attaches, depends upon the regularity of the preliminary steps to be taken previous to the commencement of the...