The State v. Dix

• Decision Date: 18 November 1897
• Docket Number: 2,488
• Parties: THE STATE v. DIX
• Court: Indiana Appellate Court

48 N.E. 261

18 Ind.App. 472

THE STATE v. DIX

No. 2,488

Court of Appeals of Indiana

November 18, 1897

From the Sullivan Circuit Court.

Affirmed.

W. A Ketcham, Attorney-General, Charles D. Hunt and W. H Bridwell, for State.

W. S Maple, for appellee.

OPINION

ROBINSON, J.

This case was transferred to this court by the Supreme Court.

Appellee was arrested upon an indictment charging a misdemeanor. The indictment was returned on November 5, 1895. On the first day of January term, 1896, of the Sullivan Circuit Court, defendant moved to quash the indictment. This motion was overruled on the second day of the same term. On the 13th day of the same term, on application of the State, the cause was continued until the seventh day of the following term of court. On that day the following order book entry was made: "Comes now Charles D. Hunt, prosecuting attorney, prosecuting the pleas in behalf of the State, and this cause is stricken from the docket with leave to reinstate, and an attachment ordered for Samuel Tincher."

On the first day of the next term of court, the prosecutor and defendant's attorney being present, the prosecuting attorney asked an order of court to reinstate the cause, and over defendant's objection, the cause was reinstated. The prosecutor then asked that a bench warrant be issued, which request the court took under advisement, and afterwards, on the same day, the court set aside the entry reinstating the cause. On the twelfth day of the same term the court overruled the request of the prosecuting attorney to have the cause reinstated, to which ruling the State excepted, and was given time to file a bill of exceptions.

The State assigns as error the overruling of the motion of the State to reinstate said cause upon the docket after it had been stricken from the docket with leave to reinstate.

Where an application made by a prisoner to be discharged under sections 1851-1853, Burns' R. S. 1894, is granted, such discharge amounts to an acquittal of the offense. McGuire v. Wallace, 109 Ind. 284, 10 N.E. 111. The ordinary dismissal of a criminal proceeding against a defendant, by the prosecuting attorney, is equivalent to a nolle prosequi. State v. Woulfe, 58 Ind. 17.

In the case of Kistler v. State, 64 Ind. 371, it is said: "We do not doubt that, by arrangement of the parties, a civil, and probably a criminal, cause may be temporarily omitted from the docket, without being absolutely dismissed. Perhaps the court may order that a cause may be temporarily omitted from the docket, without the consent of the parties. But it would be inconsistent with...