Weir v. State

• Decision Date: 12 April 1888
• Docket Number: 14,277
• Citation: Weir v. State, 115 Ind. 210, 16 N. E. 631 (Ind. 1888)
• Parties: Weir v. The State
• Court: Indiana Supreme Court

16 N.E. 631

115 Ind. 210

Weir v. The State

No. 14,277

Supreme Court of Indiana

April 12, 1888

Petition for a Rehearing Overruled June 13, 1888.

From the Tippecanoe Circuit Court.

Judgment affirmed, with costs.

J. B Sherwood, for appellant.

L. T Michener, Attorney General, J. H. Gillett and G. P. Haywood, for the State.

OPINION

Zollars, J.

An affidavit was filed before a justice of the peace charging appellant with an assault and battery. On the day set for trial he was present in person and by attorney, and, upon his demand, the cause was tried by a jury. The jury found him guilty and assessed a nominal fine against him. Judgment was rendered upon the verdict. From that judgment he appealed to the circuit court.

After the transcript had been filed in that court the cause was continued until the succeeding term. It is recited in the record that, at that term, the prosecuting attorney being present, appellant, in person and by attorney, also appeared, "and the issues being joined in this cause, come now the following jury," etc. The jury again returned a verdict of guilty and assessed a small fine, and again judgment was rendered upon the verdict.

Appellant contends that the judgment should be reversed because the record does not affirmatively show that he was arraigned in either the justice's or circuit court, or that a plea was entered in either court. This contention is fully met by the decision in the recent case of Johns v. State, 104 Ind. 557, 4 N.E. 153, and hence it will not be necessary for us to extend this opinion in answer, at length, to counsel's argument. Counsel adopt a false theory in assuming that, because the record does not affirmatively show an arraignment and a plea entered by the court, the judgment will not be a bar to a second prosecution for the same offence. The record shows an affidavit filed, the arrest of appellant, his presence in court in person and by an attorney, a trial by a jury, a verdict of guilty, and the assessment of a fine, a motion for a new trial overruled and a judgment upon the verdict. Clearly, that record will protect appellant against a second prosecution for the same offence. Had he been acquitted, a record of the proceedings, as full as that before us, without doubt would protect him against a second prosecution.

On account of the positive terms of the statute, section 1763 R. S. 1881, and a line of cases in this State, we have...