O'Brien v. The State
| Decision Date | 16 September 1890 |
| Docket Number | 15,163 |
| Citation | 25 N.E. 137,125 Ind. 38 |
| Parties | O'Brien v. The State |
| Court | Indiana Supreme Court |
From the Wells Circuit Court.
Judgment affirmed, with costs.
J. B Kenner, A. N. Martin, E. C. Vaughn, L. Mock, A. Simmons and J. I. Dille, for appellant.
L. T Michener, Attorney General, W. A. Branyan, Prosecuting Attorney, J. C. Branyan, C. W. Watkins and O. W. Whitelock for the State.
This prosecution originated in the Huntington Circuit Court, and upon the appellant's motion the venue was changed and the prosecution carried to the Wells Circuit Court.
In the latter court the appellant was placed upon trial and convicted of the crime of involuntary manslaughter, and from the judgment of the court he appeals.
Several errors are assigned, but in the briefs filed for the appellant but three questions are discussed, and these are all that we are called upon to consider.
The questions are:
1. Had the Wells Circuit Court jurisdiction of the subject-matter of the prosecution?
2. Was there sufficient evidence to support the judgment of the court? and,
3. Did the court err in the admission of certain testimony offered on the trial in behalf of the State.
The Wells Circuit Court is a court of general jurisdiction, and as it does not appear from the record that it was without jurisdiction, this court will presume in favor of its jurisdiction. Passmore v. Passmore, 113 Ind. 237, 15 N.E. 338.
The foregoing would seem to be a sufficient answer to the first objection raised, but we may further state that it appears from the record that, on the 15th day of April, 1889, a certain transcript was filed in the clerk's office of the Wells Circuit Court, which is copied into the record at length.
This transcript purports to contain the proceedings had in the Huntington Circuit Court in a certain criminal action in the name of the State of Indiana vs. James O'Brien, and discloses that at the March term, 1889, of said court, its grand jury returned into open court an indictment, which is copied in full into the record.
The indictment, as copied, recites that it is a presentation by the grand jurors in and for the county of Huntington, State of Indiana, against George Delvin, James O'Brien and Henry Stinebrenner for the crime of murder, and purports to be signed by the prosecuting attorney for the Huntington Circuit Court, and has upon it the proper endorsements.
The transcript is duly certified by the clerk of the Huntington Circuit Court.
It is contended that the transcript does not state, nor the copy of the indictment therein found recite, that the grand jury who returned the indictment were duly empanelled, and as it does not that the presumption is that they were not, and hence the court was without jurisdiction. There is nothing in this objection. Reasonable certainty is all that is required under our code of criminal procedure. Sections 1755 and 1756, R. S. 1881; McCool v. State, 23 Ind. 127.
It appearing affirmatively in the record, and also by recital in the copy of the indictment which it contains, that the indictment was returned by a grand jury of Huntington county, the presumption must be that it was a legally empanelled grand jury.
In this connection we may say further that after the return of the indictment, and before asking that the venue be changed, the appellant entered his plea of not guilty, thereby waiving any irregularity in the organization of the grand jury. Powers v. State, 87 Ind. 144; Ford v. State, 112 Ind. 373, 14 N.E. 241.
But it is further contended that the statute requires when the venue is changed in a criminal prosecution that the original papers on file in the court granting the change shall be filed in the clerk's office of the court to which the venue is changed; that the record does not show that this was done, and, therefore, it must be assumed that the original papers were never filed in the clerk's office of Wells county, and the conclusion must follow that the Wells Circuit Court was without jurisdiction.
Let it be conceded that if the original indictment had not been filed in the clerk's office of the Wells Circuit Court it had no jurisdiction, the state of the record is not such as to lead us to the conclusion that the indictment had not been properly filed.
The statute does not require that a record shall be made of the fact of the filing of the indictment, and hence the State can not be prejudiced because there is no such record. The statute made it the duty of the clerk of the Huntington Circuit Court to make a transcript, such as we find in the record, of the proceedings had in that court, and to seal it up, together with the original papers, and deliver the same to the sheriff of his county, whose duty it was to deposit the package in the clerk's office of Wells county. When this was done the Wells Circuit Court had jurisdiction. Sections 1771 and 1772, R. S. 1881.
The transcript seems to have found its way to the Wells Circuit Court, and we must presume that it did so in the manner prescribed by law, and the contrary not appearing, we must presume that the original papers accompanied the transcript. We are bound to presume that public officers do their duty until the contrary is made to appear. Authorities, supra; Leslie v. State, 83 Ind. 180; Duncan v. State, 84 Ind. 204; App v. State, 90 Ind. 73; Bright v. State, 90 Ind. 343.
If the original papers had not been filed in the Wells Circuit Court it was incumbent on the appellant to make that fact affirmatively appear; the fact was susceptible of proof, which was necessarily at hand, and could have been introduced without hardship or even inconvenience to the appellant.
From a careful consideration of the evidence we are of the opinion that it fully supports the verdict of the jury.
That a felonious homicide was committed there can be no question; the controverted question is as to whether the appellant participated in the commission of the crime. He introduced evidence tending to prove an alibi. We are not favorably impressed with the testimony which he introduced to support this theory of his defence.
We come now to the consideration of the last question presented for our consideration.
William Delvin was called and examined as a witness on behalf of the State. The appellant was in jail in the town of Ashland, State of Wisconsin. The witness and one Rosebraugh were sent there to ascertain if the appellant was the James O'Brien named in the indictment, and if so to take steps for his removal to Huntington county to answer to said indictment.
When the witness and Rosebraugh arrived at the jail where the appellant was confined, in the presence of the jailer, they requested of the appellant permission to make an examination of his body for certain marks or scars thereon to be found if he was the person accused in said indictment as James O'Brien, and the appellant refusing to grant the request, he was hand-cuffed and the proposed examination made forcibly and against his will.
It was as to the marks and scars which the witness claimed to have discovered from said examination that the State proposed to have the witness testify.
To the offered testimony the appellant objected, stating several grounds of objection, but as none of them were sufficiently specific, save one, to present any question for our consideration, we shall confine ourselves to the question presented.
It is contended that the proposed testimony was within the inhibition found in the last clause of section 14 of article 1 of our State Constitution, which reads as follows:
"No person, in any criminal prosecution, shall be compelled to testify against himself."
We are not called upon to decide whether or not the court could at the trial, or anterior thereto, have compelled the appellant to submit to an examination that the information thus obtained might be used as evidence against him on the trial and express no opinion upon that question. But for a learned discussion of the question, pro and con, see State v....
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