The State v. Drake
| Decision Date | 11 October 1890 |
| Docket Number | 15,673 |
| Citation | 25 N.E. 434,125 Ind. 367 |
| Parties | The State v. Drake |
| Court | Indiana Supreme Court |
From the Shelby Circuit Court.
Judgment reversed, at costs of appellee, with instructions to proceed in accordance with this opinion.
J. C McNutt, Prosecuting Attorney, and A. F. Wray, for the State.
K. M Hord and E. K. Adams, for appellee.
The prosecuting attorney filed a proper affidavit and information in the Shelby Circuit Court on the 23d day of January, 1890, and during the December term, 1889, of said court, charging the appellee with the crime of arson by burning the barn of one Margaret O'Tool, on the 27th day of March, 1889.
To this affidavit and information the appellee filed a plea in abatement, in which it is alleged that the prosecuting attorney, on the 30th day of December, 1889, during the same December term of court, but at a time when the court was not in session, filed with the clerk of the court an affidavit and information charging the appellee with burning the barn of said Mary O'Tool on the 27th day of March, 1889, averring that the affidavit and information properly charged the crime of arson, and that upon said affidavit and information, so filed on December 30th, 1889, the clerk, without any order of court, issued a warrant which was served by the sheriff by taking the appellee into custody, averring in the plea that the offence charged in the affidavit and information filed on December 30th is the identical and same offence charged in the affidavit and information filed January 23d; that at the time of filing the last affidavit and information the first affidavit and information were still pending; that at the time of the filing of the first affidavit and information, and the appellee's arrest thereon, the appellee was not in custody or on bail on said charge or any other criminal charge, nor had any indictment on said charge or any other criminal charge been presented by any grand jury against him and been quashed, nor had any cause been appealed to the Supreme Court and reversed on account of any defect in any indictment to which he was a party; that at the time of filing said first named affidavit and information the Shelby Circuit Court was then in session, and a grand jury duly and legally organized and empanelled was in session, and had not been discharged; that appellee did not appear to said named affidavit and information or plead thereto, so as to give the court jurisdiction over his person; that long prior to the beginning of the December term, 1889, of the Shelby Circuit Court, the prosecuting attorney had full notice of the knowledge of the alleged felony, and the witnesses by whom he expected to prove the same, including the witnesses upon the back of the information in this case, and that on the 30th day of December, 1889, when the grand jury was in session, all of said witnesses were present in the court-house, in the city of Shelbyville, in every respect available to him and said grand jury, for the purpose of procuring an indictment on said charge; that during the May term, 1889, and October term, 1889, of the Shelby Circuit Court, and after the commission of said alleged offence on the 27th day of March, 1889, of which said prosecuting attorney had full knowledge, prior to said terms of court, there was, at each of said terms of court, and also at a term of said court begun on the 3d day of December, 1889, a grand jury at each term in session in said court; that appellee is not now in custody otherwise than by the filing of the affidavit and information in this cause, upon which a warrant was issued by the clerk of this court, by virtue of which he is alone being held; that at the time of the filing of said affidavit and information he was not in custody or upon bail upon any criminal charge whatever, except the custody and charge aforesaid, so filed on December 30th, 1889, which conferred no jurisdiction on this court to hold or try him upon said charge for the reasons aforesaid; that at the time of filing this affidavit and information, on this day in this court, the defendant was not in custody or on bail upon a charge of any crime other than as stated herein, nor had any charge against him been presented by indictment by any grand jury and been quashed, nor had any cause been appealed to the Supreme Court and reversed on account of any defect in any indictment to which he was a party; that if any crime whatever had been committed it was committed upon the 27th day of March, 1889, and before the discharge of the grand jury at the March term, 1889, of this court, and before their discharge in the May and October terms, 1889; and that since said time three grand juries have been in session in this county of Shelby and State of Indiana, duly qualified and empowered to present an indictment against any person guilty of a felony in such matter, and of which the prosecuting attorney had notice. Prayer, that the affidavit and information abate. The plea is sworn to by the appellee.
The prosecuting attorney demurred to this plea and the demurrer was overruled and exceptions reserved. The prosecuting attorney...
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