Burkus v. State

• Decision Date: 06 January 1931
• Docket Number: Nos. 25189,25263.,s. 25189
• Citation: Burkus v. State, 202 Ind. 341, 174 N.E. 292 (Ind. 1931)
• Parties: BURKUS v. STATE. HEYVERESTS v. SAME.
• Court: Indiana Supreme Court

202 Ind. 341

174 N.E. 292

BURKUS

v.STATE.

HEYVERESTS

v.SAME.

Nos. 25189, 25263.

Supreme Court of Indiana.

Jan. 6, 1931.

Appeal from St. Joseph Circuit Court; Cyrus E. Pattee, Judge.

John Burkus and Peter Heyverests were convicted in criminal cases, and appealed to the Appellate Court, where conviction was affirmed (165 N. E. 923, 924), and appellants filed petitions asking that appeals be ordered certified to the dockets of the Supreme Court.

Petitions to transfer dismissed.

W. D. Kurywczak, of South Bend, for appellant.

Arthur L. Gilliom, Atty. Gen., and Frank L. Greenwald, Deputy Atty. Gen., for the State.

MARTIN, J.

The Appellate Court of Indiana(165 N. E. 923, 924) purported to decide these cases by orders reading as follows: “Per Curiam.Affirmed,” without any written opinion or statement of the points arising therein.Neither appellant filed a petition for rehearing in the Appellate Court, but both filed petitions in this court asking that said appeals be ordered certified to the dockets of this court, and the question arises: Do such appellants in their appeals have a right to have written opinions or statements in writing of the material questions arising in the records thereof?

This question has recently been answered in the affirmative in the following civil appeals: Hunter v. Cleveland, etc., Ry. Co.(Ind. Sup.1930)174 N. E. 287;Myers v. Newcomer et al.(Ind. Sup.1930)174 N. E. 290;andSluss v. Thermoid Rubber Co.(Ind. Sup.1930)174 N. E. 291.In criminal appeals there is an additional reason, to which we will now refer, for holding that the Appellate Court must in these cases give an opinion in writing.

At the next session of the General Assembly after the adoption of the present Constitution a law was passed providing that: “All opinions of the Supreme Court in criminal prosecutions must be given in writing, and recorded in the order-book.”Section 163, art. 14, c. 1, part 3, Rev. St. 1852(vol. 2, p. 381, 382), also section 1894, Rev. St. 1881;section 1967, Rev. St. 1894andRev. St. 1901.Such law continued in effect from its enactment until 1905 when it was re-enacted in its present form, section 337, c. 169, Acts 1905, section 2397, Burns' 1926, as follows: “All opinions of the Supreme Court or the Appellate Court in criminal prosecutions must be given in writing and recorded in the order-book.”When considered in connection with the various constitutional and statutory provisions discussed in Hunter v. Cleveland, etc., Ry. Co., supra, with the apparent intent of the Legislature and with the evils it was enacted to remedy, it is clear that the effect of this section is to impose definitely upon the Appellate Court in all criminal cases the duty of rendering an opinion or statement in writing on the questions arising in the record necessary to be decided in order to finally determine a case.It follows that there has been no decision and judgment in these cases by the Appellate Court in the manner directed by section 5, art. 7,Const. 1851, section 172, Burns' 1926;section 1351, Burns' 1926 and section 2397, Burns' 1926, and that said cases were still pending in the Appellate Court on January 1, 1931.

Section 1, c. 123, Acts 1929, section 2377, Burns'...