Horner v. State

Citations

• 18 Ohio C.C. Dec. 568
• 8 Ohio C.C. (n.s.) 441
• 1906 Ohio Misc. LEXIS 205

Syllabus

<p>CRIMINAL LAW — FORMER JEOPARDY — INDICTMENT.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. Demurrer hot Necessary to Raise Question oe Sufficiency of Plea in Bar.</p> <p>Where one who has been indicted for a crime interposes a plea in bar to the indictment and a replication is filed thereto, the court may pass upon the sufficiency of the plea in bar. where the question is raised in such a state of the pleadings and a demurrer is not necessary.</p> <p>2. Plea of Former Jeopardy must set forth Former Indictment.</p> <p>A person indicted for an offense who pleads in bar that he has been before indicted, tried and acquitted for the same offense, must set forth in such plea the former indictment to enable the court to determine whether or not an offense was legally charged. The fact that Rev. Stat. 7258 (Lan. 11012) does not specifically provide for setting forth the indictment will not relieve the pleader of this necessity.</p> <p>8. Court will not Take Cognizance of Former Proceedings.</p> <p>Where a defendant has been tried before a jury upon an indictment and is again prosecuted upon a second indictment to which he pleads in bar the former indictment and trial, the court will not take judicial cognizance-of the proceedings under the former indictment in passing on the plea in bar to the second.</p> <p>4. Prosecution on Indictment for Larceny of Property of one Person not Former Jeopardy on Prosecution for Larceny of Property of Another.</p> <p>A person indicted and brought to trial for an offense alleged to be the stealing of the property of one “John W. E.,” may be recognized to appear before the next term of court and the jury discharged without prejudice to the prosecution under Rev. Stat. 7303 .(Lan. 11057), where-the evidence adduced shows that the property was in fact that of “Joseph W. E.” and not of “John W. E.” Such proceedings will not constitute an acquittal which will render a plea of former jeopardy good as against a subsequent indictment for steal