Beggs v. State
| Decision Date | 06 February 1890 |
| Docket Number | 14,977 |
| Citation | 23 N.E. 693,122 Ind. 54 |
| Parties | Beggs v. The State |
| Court | Indiana Supreme Court |
From the Shelby Circuit Court.
The judgment is affirmed, with costs.
R. W Harrison, for appellant.
J. C McNutt, Prosecuting Attorney, and A. F. Wray, for the State.
The affidavit and information upon which this prosecution was based charged that the appellant, on a day named, unlawfully entered upon the land and premises of the affiant, after having been notified not to do so by the owner of the land, which is described. There was a judgment of conviction, from which this appeal is prosecuted.
The point is made, that the appeal has not been properly taken because the appellant did not serve notice upon the prosecuting attorney until after the transcript was filed in the office of the clerk of this court. In the ordinary course, an appeal is taken in a criminal case by serving notice on the prosecuting attorney that the appellant appeals to the Supreme Court, and by filing a transcript in the clerk's office within ninety days after such appeal, or notice. In the present case a transcript was filed, after which notice was served upon the prosecuting attorney that an appeal had been taken. All this was done within the time within which an appeal could have been taken. While not a literal compliance with the statute, it is in substantial conformity therewith, and must be held to constitute an appeal. The motion to dismiss the appeal can not be sustained.
The point is made, that the information should have been quashed because it is not averred that the land, or premises, upon which the appellant entered was occupied by, or in the possession of, the alleged owner. Section 1941, R. S. 1881, reads as follows: "Whoever, being about to enter upon the inclosed or uninclosed land of another, shall be forbidden so to do by the owner or occupant, or his agent or servant; or who, being unlawfully upon the inclosed or uninclosed land of another, shall be notified to depart therefrom by the owner, or occupant, or his agent or servant, * * * shall be guilty," etc., "and, upon conviction, shall be fined," etc.
The gravamen of the offence charged is the unlawful entry upon the land of the prosecuting witness after having been notified not to do so by the owner. It is undoubtedly true, as the authorities cited on the appellant's behalf abundantly prove, that in order to maintain a...
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