The opinion
Concurring Opinion
Gilkison, J.,
Concurring. — I concur in the result reached in the opinion. However, I think that the majority opinions in the cases of Slack v. Grigsby (1951), 229 Ind. 335 , 97 N. E. 2d 145 , and Todd v. State (1951), 229 Ind. 664 , 101 N. E. 2d 45 , in so far as they attempt to provide a plan whereby a final judgment rendered by a circuit or criminal court in a felony case, may be vacated and held for naught on a motion made by the state, should be overruled.
Further, I think that jeopardy attaches to a defendant, when a jury is empaneled and sworn to try his case, or if the trial is by the judge without a jury, when he is arraigned, and enters his plea if it be a plea of guilty, if the plea is not guilty, when the trial starts and the state begins its opening statement, if no opening statement is made, when the witness or witnesses is or are sworn to testify. It is wholly erroneous to say that jeopardy does not attach until a lawful judgment is rendered. (See my dissents in the above entitled causes for authorities.)
Note. — Reported in 119 N. E. 2d 895 .