Kirk v. State

Dissenting Opinion

DeBruler, J.

Unlike the majority, I believe that we should determine whether or not the trial court committed error in denying the defendant’s motion for discharge for delay in trial, without regard to the events which occurred subsequent to the ruling of the trial court on that motion. If the defendant was entitled to an order of discharge upon his motion, the application of principles governing double jeopardy might result in a reversal, of this conviction on Count II for automobile banditry, which was filed by the State after the trial court denied the motion to discharge for delay. This is so because an order discharging the defendant, if made by the trial court and not appealed by the State, would have constituted a bar to his subsequent prosecution for the burglary charged in Count I, and such order would also have been a bar to his subsequent prosecution for the automobile banditry charged in Count II, if the scope of the bar as determined by the application of the principles governing double jeopardy warranted.

It is the law in Indiana that a discharge for delay in trial constitutes a bar to a subsequent prosecution for the same offense. As this Court said in McGuire v. Wallace (1886), 109 Ind. 284, 289, 10 N. E. 111, in interpreting a former two-term discharge statute, “Such a discharge amounts to an acquittal of the offense.” In construing our former three-term discharge statute this Court so held in the following words:

“When the statute (§ 9-1403, supra) is properly invoked a discharge thereunder is a bar to further prosecution for the same offense, and the. order granting such discharge is a final judgment in the cause.” State v. Soucie (1954), 234 Ind. 98, 103, 123 N. E. 2d 888.

However, since the evidence given at the hearing on the motion to discharge for delay is not before us in the record of the proceeding, it is not possible to review the trial court’s order denying that motion. However, since the defendant’s claim is constitutional in dimension, I would order the trial court to certify a transcript of that hearing to this Court. Upon receipt thereof, it should first be determined whether the trial court was correct in his ruling. If it should be determined on review that the trial court was in error in denying the motion, then this Court should proceed to determine the scope of the bar arising from the order to which defendant was entitled, by the application of principles governing double jeopardy.

Note. — Reported in 269 N. E. 2d 751.