ON PETITION FOR A REHEARING. Appellant, on petition for a rehearing, insists that we decide his question of former jeopardy. On our former consideration of this case we noticed that point in appellant's brief, but the grounds upon which we placed our decision in reality decided the question of former jeopardy against appellant without going into the question in detail.
The question of former jeopardy may, prior to the trial, be presented by a plea in bar (Klein v. State [1901], 157 Ind. 146, 60 N.E. 1036; Barker v. State [1919], 188 Ind. 11. 263, 267, 120 N.E. 593), the sufficiency of which is for the court (Harlan v. State [1921], 190 Ind. 322, 336, 130 N.E. 413), or by evidence during the trial under a plea of not guilty. Foran v. State (1924), 195 Ind. 55, 144 N.E. 529;Earle v. State (1924), 194 Ind. 165, 142 N.E. 405. But in this case neither of these remedies was invoked. *Page 498
The record discloses that appellant was tried upon an affidavit signed by Marie Bowman and filed January 30th charging appellant with first degree rape on one Alice Bowman. A trial on this affidavit was had in April following, and on May 1st the court found appellant guilty of assault and battery with intent to commit rape and judgment was entered accordingly. Various motions were then filed by appellant and overruled. An appeal to the Supreme Court was granted and a bill of exceptions containing the evidence approved by the court was filed June 22nd. The motion to discharge on the ground of former jeopardy was filed June 24th, sixty-eight days after the close of the trial and fifty-four days after the entering of final judgment.
The facts in support of the motion for his discharge rest upon an affidavit made by Harry McGlenn charging appellant with assault and battery with intent to commit rape on one Alice Bowman and filed December 20th. On the following January 30th the cause was called for trial. The witnesses for both the state and defendant were present in court. Thereupon the prosecuting attorney, by consent of the court and over the objection and exception of the defendant, entered a nolle prosequi and the defendant was discharged. It is evident from this record that counsel for appellant had no thought of the question of former jeopardy until long after his client was found guilty of assault and battery with intent to commit rape.
Former jeopardy, whether presented by a special plea or at the trial under the general issue (§ 2230, Burns 1926), involves the record of the former proceeding — acquittal or conviction 12-15. — and the identity of the offense and of the person alleged to have been guilty. Earle v. State, supra. The affidavit upon which appellant was tried included three distinct crimes, namely, rape in the first degree, rape in *Page 499 the second degree and assault and battery with intent to commit a felony, while the first affidavit charged the single offense of assault and battery with intent to commit rape, and we so in effect ruled in our former opinion. If by any pretext it could be said that the motion, or more properly appellant's plea, was timely filed, and in our opinion it was not, then, for the reasons here stated, it was insufficient to meet the test approved by the decisions of this court. The plea was insufficient even under the evident theory of the trial court that the affidavit upon which appellant was tried included the offense of an intent to rape, for the reason there was no allegation in the pleading showing that the trial of the cause had been entered upon, in that a jury had been selected and sworn to try the cause, or, in case of a trial by the court, that a witness or witnesses had been sworn to give testimony in the case.
Petition for rehearing denied.