The opinion
*371 Dissenting Opinion
DeBruler, J.
Appellant was convicted on this charge in a trial without jury. Pursuant to TR. 59A(4) appellant filed a motion to correct errors based solely on the insufficiency of the evidence to show the required intent and she requested a discharge. The trial court granted appellant’s motion to correct errors but instead of discharging her, he immediately set the case for re-trial in thirteen days. Appellant filed a motion to discharge on the ground that to try appellant for the same offense would constitute double jeopardy in violation of the Fifth and Fourteenth Amendments to the United States Constitution. The trial court overruled the appellant’s motion.
I think the trial court erred because under TR. 59E, the granting of this appellant’s motion to correct error was a finding of not guilty for lack of evidence, and it is undisputed that an appellant found not guilty may not be tried on that same charge. My reasoning is as follows:
The sole allegation of error in the motion to correct error was the insufficiency of the evidence on the element of intent. In granting such a motion the trial court had to review the evidence. Trial Rule 59E reads in pertinent part:
“(E) Relief granted on motion to correct errors. The court, if it determines that prejudicial or harmful error has been committed, shall take such actions as will cure the error, including without limitation the following with respect to all or some of the parties and all or some of the issues:
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“(7) in reviewing the evidence, the court shall grant a new trial if it determines that the verdict of a non-advisory jury is against the weight of the evidence; and shall enter judgment, subject to the provisions herein, if the court determines that the verdict of a non-advisory jury is clearly erroneous as contrary to or not supported by the evidence, or if the court determines that the findings and judgment upon issues tried without a jury or with an advisory jury are against the weight of the evidence.” (Emphasis added.)
*372 This rule defined the sole issue for the trial court, namely, was the finding of guilty against the weight of the evidence. The granting of the motion to correct error necessarily constituted a determination that the finding of guilty was “against the weight of the evidence”. At that point the trial court had no power under the Rule to' do anything except enter judgment for appellant.
The double jeopardy clause of the Federal Constitution also requires that result. Since the trial court was also the trier of fact he could not both find appellant guilty beyond a reasonable doubt and determine that that finding was against the weight of the evidence. In a trial without jury the trial court determination that the finding of guilty was against the weight of the evidence was itself a finding of not guilty. Once the trial court found appellant not guilty, she could not be re-tried on that same charge without violating the federal constitutional prohibition against double jeopardy. Ashe v. Swenson (1970), 397 U. S. 436 , 90 S. Ct. 1189 , 25 L. Ed. 2d 469 ; Benton v. Maryland (1968), 395 U. S. 784 , 89 S. Ct. 2056 , 23 L. Ed. 2d 707 ; U. S. v. Ball (1896) , 163 U. S. 662 , 16 S. Ct. 1192 , 41 L. Ed. 300 ; Dunn v. State (1880), 70 Ind. 47 .
The majority opinion makes no attempt to refute the above argument but apparently holds that appellant waived her double jeopardy claim by not raising the sufficiency issue at the trial. This holding is erroneous for several reasons: (1) Until today there has never been a rule that a defendant must raise the issue of the sufficiency of the evidence at some time prior to raising it in the motion to correct errors. The majority opinion cites no authority for its position, nor could it. The rule is quite to the contrary. TR 59A; I.L.E., Criminal Law § 606, § 711. See for example Wincel v. State (1968), 251 Ind. 498 , 242 N. E. 2d 508 . If appellant had waived the issue, then it was not properly in the motion to correct errors and the trial court was in error in ruling on the merits of the motion to correct errors. If it was validly raised in the motion to correct errors then the majority opinion has the burden of *373 explaining why the trial court ruling did not constitute an acquittal and therefore a bar to a new trial.
(2) Assuming arguendo that appellant was required to raise the issue at trial, the record shows clearly that this was done in the normal way. Appellant made a motion for dis.charge at the close of the State’s case. The issue raised by that motion is the same as that raised in a jury trial by a motion for directed verdict, now called motion for judgment on the evidence, TR. 50. Wincel v. State, supra. In that case, Justice Arterburn wrote:
“The motion for a new trial only raised the question of the sufficiency of the evidence and that it was contrary to law. It did not raise as alleged error any motion to discharge. That question is not before us on appeal. However, the motion to discharge was made to the trial court at the close of statute’s [sic] evidence, and was in all respects nothing more than a demurrer to the evidence in which the evidence most favorable to the state is admitted for the purpose of the motion. In other words, it has the same legal effect as a motion for a directed verdict made at the close of the state’s evidence in a trial before a jury.” 242 N. E. 2d at 509 .
A motion for discharge at the close of the State’s case has to be renewed or waived only if the defendant introduces some evidence in his defense. Ward v. State (1965), 246 Ind. 374 , 205 N. E. 2d 148 ; Johnson v. State (1964), 245 Ind. 285 , 198 N. E. 2d 373 . Appellant’s motion did not have to be reviewed because immediately after the trial court overruled her motion she rested her case. Therefore, appellant did properly raise the issue of sufficiency of the evidence during the trial.
(3) Appellant’s right not to be tried again for the same offense after an acquittal is a fundamental, constitutional right and not some technical rule of procedure to be ignored in order to affirm a trial court ruling. We can find a waiver of such a right only if the record shows an “intentional relinquishment or abandonment of a known right or privilege”. Johnson v. Zerbst (1937), 304 U. S. 458 , 58 S. Ct. 1019 , 82 *374 L. Ed. 1461 ; Fay v. Noia (1963), 372 U. S. 391 , 83 S. Ct. 822 , 9 L. Ed. 2d 837 ; Carnley v. Cochran (1962), 369 U. S. 506 , 82 S. Ct. 884 , 8 L. Ed. 2d 70 ; Grimes v. State (1972), 257 Ind. 660 , 278 N. E. 2d 271 ; Brimhall v. State (1972), 258 Ind. 153 , 279 N. E. 2d 557 . The majority opinion does not attempt to point to such evidence because there is none. In fact the record shows just the opposite to be true. Appellant raised the sufficiency issue at the correct time and did not waive it by introducing any evidence whatsoever. Assuming arguendo that appellant failed to raise the sufficiency issue at trial, the question is whether she knew her failure constituted a waiver of her constitutional right against double jeopardy. The answer is clearly no because such a waiver rule did not exist until it was created in this opinion. Therefore there was no valid waiver of the double jeopardy claim and the majority opinion must come to grips with the constitutional effect of the trial court ruling on the motion to correct errors.
Note. — Reported in 281 N. E. 2d 490 .