Winters v. State
| Decision Date | 06 March 1928 |
| Docket Number | 25,129 |
| Citation | 160 N.E. 294,200 Ind. 48 |
| Parties | Winters v. State of Indiana |
| Court | Indiana Supreme Court |
Rehearing Denied May 9, 1928.
1. CRIMINAL LAW---Prosecutor's Dismissal of Criminal Prosecution---Reinstatement Precluded.---The voluntary dismissal of a criminal prosecution by the prosecuting attorney in the absence and without the consent of the defendant is equivalent to a nolle prosequi, and such prosecution cannot thereafter be reinstated over the objection of the defendant. p. 50.
2. CRIMINAL LAW---Dismissal Before Beginning Trial not Bar to New Prosecution.---The dismissal of a prosecution before the jury is impaneled and sworn does not bar another prosecution for the same offense, and such new prosecution may be commenced in a different court. p. 50.
3. DRUNKARDS---Intoxication---Conviction Sustained---Evidence Held Sufficient.---Evidence held sufficient to sustain conviction for being intoxicated in a public place (2721 Burns 1926), although defendant's explanation of his action and conduct at the time of the alleged offense was reasonable. p. 51.
4. CRIMINAL LAW---Credibility of Witnesses---Not Determined on Appeal.---The Supreme Court will not determine the credibility of witnesses nor undertake to weigh the evidence in a criminal case. p. 52.
5. CRIMINAL LAW---Appeal---Evidence---Weight.---The Supreme Court will not determine the weight of evidence in general nor the weight of conflicting evidence. p. 52.
6. CRIMINAL LAW---Appeal---Rule as to Setting Aside Conviction.---On appeal from a judgment of conviction, the judgment will not be set aside if there is substantial evidence, either direct or inferential, which, standing alone, fairly establishes all the material facts necessary to constitute the crime. p. 52.
7. CRIMINAL LAW---Appeal---Evidence---Conflicting Inferences---Rule on Appeal.---Where the evidence, either direct or circumstantial, is such that two inferences might reasonably be drawn therefrom, one of guilt and the other of innocence, it is not within the province of the Supreme Court to determine which inference should have been drawn, that being exclusively for the jury or the court which tried the case. p. 52.
From Henry Circuit Court; J. R. Hinshaw, Judge.
William A. Winters was convicted of being intoxicated in a public place, and he appeals.
Affirmed.
Evans & DeWitt and S. R. Hunter, for appellant.
Arthur L. Gilliom, Attorney-General, and George J. Muller, Deputy Attorney-General, for the State.
Appellant was prosecuted by an affidavit filed in the Henry Circuit Court on September 15, 1925, charging him with having been found in a state of intoxication in a public place, in violation of Acts 1925 ch. 48, § 8, § 2721 Burns 1926. After a plea of not guilty, the cause was submitted to the court for trial and resulted in a finding of guilty and a judgment assessing a fine and costs against the defendant.
The errors relied upon for reversal are that the court erred in overruling appellant's motion for a new trial and in sustaining the state's demurrer to appellant's plea in abatement, wherein it is alleged that an affidavit charging the same offense was filed against appellant in the city court of Newcastle on September 14, 1925, that appellant appeared thereto, entered a plea of not guilty, requested and was granted a jury trial; that on September 15, over the objection of appellant, the said charge was dismissed in the city court, and the present charge was thereupon filed in the circuit court.
Appellant contends that where a prosecuting officer files a criminal charge against a person in a court having jurisdiction, he cannot dismiss the case over the objection of the defendant, or without the consent of the defendant having been obtained, and then "refile the same charge" (i. e. begin another prosecution for the same offense) in another court of competent jurisdiction and there prosecute the defendant. He bases this contention upon the rulings of this court in the cases of State v. Woulfe (1877), 58 Ind. 17, 19; Kistler v. State (1878), 64 Ind. 371, and State v. Dix (1897), 18 Ind.App. 472, 48 N.E. 261, where voluntary dismissals of criminal proceedings against defendants by prosecuting attorneys in the absence of the defendants and without their consent were held to be equivalent to nolle prosequi. Such a prosecution cannot thereafter be reinstated over the objection of the defendant. Kistler v. State, supra. The question raised in the case at bar, however, is essentially different from that decided in the cases upon which appellant relies. Here, the prosecuting attorney did not seek to reinstate a prosecution where there had been a dismissal, but filed a new action. In such a case the dismissal or nolle prosequi entered before the jury was empaneled and sworn is not equivalent to an acquittal and does not bar the subsequent prosecution for the same offense. 16 C. J. 248. Dye v. State (1891), 130 Ind. 87; Halloran v. State (1881), 80 Ind. 586, 588; Gillespie v. State (1907), 168 Ind. 298, 80 N.E. 829; Morgan v. State (1859), 13 Ind. 215, and Bush v. State (1920), 189 Ind. 467, 128 N.E. 443.
In Dye v. State, supra, it was said:
Appellant contends that the evidence is not sufficient to sustain the judgment. The defense introduced testimony that a defective steering apparatus caused appellant to lose control of an automobile which he was driving; that appellant had a peculiarity of speech at all times, and that he was ill and weak with stomach and nervous trouble prior to and at the time of his arrest, thus offering a reasonable explanation, consistent with his innocence, of most, if not all, of the facts brought out by the prosecution. The state introduced testimony that appellant staggered around, was unsteady on his feet, could not stand up or walk straight and had the smell of liquor on his breath, and three witnesses testified that in their opinion he was intoxicated. The court apparently believed the state's evidence and drew therefrom the inference that the appellant was in a state of intoxication in a public place instead of drawing the inference from the appellant's evidence for which he contends.
Under general and well-settled rules of law in effect in this state in criminal cases, the Supreme Court will not determine the credibility of witnesses; [1] nor the weight of evidence in general; [2] nor the weight of conflicting evidence; [3] a judgment will not be set aside if there is substantial evidence, either direct or inferential, which, standing alone, fairly establishes all the material facts necessary to constitute the crime; [4] and where the evidence, either direct or circumstantial, is such that two inferences may reasonably be drawn therefrom, one of guilt and one of innocence, it is not within the province of the Supreme Court to determine which inference should have controlled, that being exclusively for the jury, or for the trial court. [5] Application of these rules to the case at bar requires that the judgment be affirmed.
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Notes:
[1]Weinzorpflin v. State (1844), 7 Blackf. (Ind.) 186, 198; Clarke v State (1869), 32 Ind. 67; Straw v. State (1925), 197 Ind. 606, 149 N.E. 430, 151 N.E. 695.
[2]Gibson v. State (1857), 9 Ind. 264, 266; Deal v. State (1894), 140 Ind. 354, 39 N.E. 930; Cazak v. State (1924), 196 Ind. 63, 65, 147 N.E. 138; Evans v. State (1927), 199 Ind. 55, 155 N.E. 203, 209.
[3]Joseph v. State (1874), 47 Ind. 255; Mahoney v. State (1925), 197 Ind. 335, 149 N.E. 444; Tisdale v. State (1927), 199 Ind. 1, 154 N.E. 801; Fullen v. State (1926), 198 Ind. 407, 151 N.E. 616.
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Thompson v. State
...(Mo.); State v. Tobin, 31 Wyo. 355; 14 Cent. Dig. Crim. Law, Sec. 2099 and cases cited; Lee v. State, 132 N.E. 582, (Ind.); Winters v. State, 160 N.E. 294, (Ind.). The of an additional instruction on Sunday was not error. Jones v. Johnson, 61 Ind. 257; State v. McGimsey, 80 N.C. 376; State ......
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