
    Trittipo v. The State.
    A conviction for a riot, upon regular proceedings before a justice of tlie peace, bars a prosecution for the same offense in the Common Pleas.
    
      APPEAL from the Hamilton Court of Common Pleas.
    
      Wednesday, June 2.
   Hanna, J.

On the 6th day of January, 1857, an affidavit was made by one Davidson before Hooker, a justice of the peace of Hancock county, charging the appellant and. others with a riot. On the 7th, the affidavit was filed in the office of the clerk of the Court of Common Pleas of that county, who, on the same day, issued a writ for the defendants, which was served by the sheriff on the 13th, being the same day on which an information was filed by the district attorney, based upon such affidavit.

On the 9th of Jrnuary, this defendant and others, against whom the first affidavit was made, went before Wright, another justice of the peace of said county, who issued a writ for their arrest, based upon an affidavit then filed by one Andrew J. Trittipo, charging them with a riot, which is, in the progress of the cause, shown to be the same offense for which the first affidavit was filed. Upon this they were arrested, and this defendant, among others, on a plea of guilty, was, by justice Wright, fined five dollars, &c. The testimony of witnesses was heard by the justice upon the plea of guilty.

A change of venue was granted, of the cause pending upon information, from the Common Pleas of Hancock to the Common Pleas of Hamilton county. There, on a separate trial upon a plea of not guilty, the appellant admitted before the jury that he had been guilty of a riot, but relied for his defense upon an alleged former conviction for the same offense.

Were the proceedings before justice Wright a bar to the prostecution in the Common Pleas?

That the judgment rendered by justice Wright is a bar, if fairly obtained, is settled by the case of Bruce v. The State, 9 Ind. R. 206.

The evidence is not in the record, except that bearing upon the alleged former conviction; and upon a careful examination of that, we are of the opinion that it was not sufficient to have justified the jury in finding that such proceedings were not legitimate and in good faith. A new trial should have been granted.

D. Moss, for the appellant.

Per Curiam. — The judgment is reversed. Cause remanded, &c.  