State v. Vankirk

Elliott, J.

Complaint before a justice of the’ peace, by Zehner against Vankirk, for surety of the peace. The justice found that Zehner had just cause to entertain the fears expressed in his affidavit against the defendant, who thereupon entered into a recognizance, as required by the statute, for his appearance at the next term of the Court of Common Pleas, to answer said complaint. In the latter court, the issue was submitted to a jury for trial. The jury, faillng to agree on a verdict, were, in the absence of the prosecuting witness and his counsel, discharged by the court from the further consideration of the case. Zehner after-wards, during the same term, moved the court that another jury be empanneled to try said cause, which ’ motion the court overruled, and, over Zehner’s objections, discharged *122 the defendant, and rendered final judgment against Zehner, the prosecuting witness, for costs. To these rulings Zehner excepted, and appeals to this court.

G. IT. Reeve, T. A. Hendricks, O. B. Hord and A. W. Hendricks, for appellant.

Uo brief has been filed in behalf of the appellee. The record does not disclose any reason for the action of the court, in discharging the defendant and adjudging the costs against the -prosecuting witness, and we are wholly unable to discover one. The appellant’s counsel, in their brief, say that the court below discharged the defendant because by the submission of the case to a jury he liad once been put in jeopardy, and could not be again tried, and that the discharge of the jury, because of their failure to agree, was tantamount to an acquittal. But this is not a prosecution for a crime or offense committed. It is a proceeding to restrain or prevent the commission of a crime, to which the constitutional provision alluded to has no application. See Murray v. The State, 26 Ind. 141 .

The j udgment is reversed, with costs, and the cause remanded for further proceedings.