Cain v. State

• Decision Date: 23 June 1905
• Docket Number: No. 5,748.,5,748.
• Citation: 74 N.E. 1102,36 Ind.App. 51
• Parties: CAIN v. STATE.
• Court: Indiana Appellate Court

36 Ind.App. 51

74 N.E. 1102

CAIN

v.STATE.

No. 5,748.

Appellate Court of Indiana.

June 23, 1905.

Appeal from Circuit Court, Morgan County; Joseph W. Williams, Judge.

Andrew Cain was convicted of selling intoxicating liquors on Sunday, and appeals. Affirmed.

James V. Mitchell, for appellant. Charles W. Miller, Atty. Gen., Wm. C. Geake, C. C. Hadley, and L. G. Rothschild, for the State.

WILEY, C. J.

This cause was transferred from the Supreme Court.

Appellant was prosecuted before a justice of the peace upon an affidavit charging him with selling intoxicating liquors on Sunday. He entered a plea of not guilty, was tried by the jury and convicted, and a fine assessed against him of $10. The trial was had and judgment entered on the 14th day of June, 1904, and from the transcript of the justice of the peace filed in the circuit court we find the following entry: “The defendant makes a motion for an appeal to the circuit court; motion is granted; and the defendant, with Charles Cain as approved surety, now in open court enters into oral recognizance in the sum of $50 for his appearance at the next term of the Morgan circuit court. And now, on the 27th day of July, defendant files his bond in the sum of $50, with Charles Cain as surety.” The bond or recognizance, as filed with the justice on the 27th day of July, 1904, was approved by the justice in the following language: “Taken and approved by me this 27th day of July, A. D. 1904. As of June 14th, 1904.” In the circuit court appellant was permitted to file affidavits to the effect that, upon the conclusion of the trial before the justice of the peace, such justice stated to appellant that he would prepare the transcript and write out the appeal bond, and when he got them ready he would notify appellant, and he and his surety could come in and sign the bond; that such transcript and bond were prepared within 10 days, but that the justice did not call the attention of appellant to the same, and failed to notify him until the 27th of July, at which date appellant and his surety signed the bond, and it was approved, as above shown. On the 30th day of July following the justice filed his transcript and the original bond taken and approved by him in the clerk's office of the Morgan circuit court, where the same was regularly docketed. It affirmatively appears from the record that the judgment before the justice of the peace was rendered on the 24th day of June, and that the appeal bond or recognizance was not filed with the justice until the 27th of July following. On the 4th day of October, the same being the twenty-sixth judicial day of the September term, the state interposed her oral motion to dismiss the appeal for the reason that the same was not perfected within 10 days from the date of the rendition of the judgment before the justice of the peace. The court sustained appellee's motion to dismiss, and rendered judgment against appellant for costs. Appellant moved for a new trial upon the sole ground that it was error for the court to sustain the state's motion to dismiss the appeal, which motion was overruled, and such ruling is here assigned as error. By the record two questions for inquiry and consideration are presented: (1) Was the personal recognizance entered of record by the justice of the peace sufficient, when certified with the record to the clerk of the circuit court, to stay proceedings until the final disposition of the cause? (2) Was the subsequent execution of the appeal bond or recognizance, as it is designated by the statute, after the expiration of 10 days from the rendition of the judgment by the justice of the peace, a substantial compliance with the statute?

It is urged on behalf of the state that the court cannot consider the affidavits filed by appellant in support of the facts already stated in this opinion, because they are not brought into the record by a bill of exceptions. If the statute governing appeals of this character from judgments rendered by a justice of the peace are to be strictly construed, then we need not consider the questions presented by the affidavits. The right of appeal is exclusively of statutory origin, and no appeal may be prosecuted except when such right is given by statute. Hughes v. Parker, 148 Ind. 692, 48 N. E. 243; In re Petition of Stroh, Sheriff, etc., 149 Ind. 164, 48 N. E. 792; Elliott's App. Pro. § 75; Ewbank's Manual, § 58; Sims v. Hines, 121 Ind. 504, 23 N. E. 515. It seems to be the settled rule that, under their general authority to regulate appellate procedure, Legislatures may require appeal bonds of the appellant in either civil or criminal cases. Encyc. Pl. & Pr. pp. 965, 966, and authorities there cited. The general principle that acts required by statute to perfect an appeal are jurisdictional, and must be strictly complied with, to vest the Appellate Court with power to entertain the appeal, applies to statutes requiring appeal bonds. Encyc. Pl. & Prac. p. 966, and authorities there cited under note 2.

Under the act of the Legislature, governing trials before justices of the peace in criminal procedure, there are three sections of the statute which must be considered together, to determine the inquiry above suggested, to wit, sections 1712-1714, Burns' Ann. St. 1901. These sections are respectively as follows:

“Sec. 1712. Any prisoner against whom any punishment is adjudged may appeal to the criminal court, and, if there be none, then to the circuit court of the county, within ten days after trial, on entering into recognizance for his appearance at the next term of such court, as in other cases; and such appeal shall stay all proceedings.”

“Sec. 1713. Recognizances for the appearance of prisoners shall, in all cases, be taken with freehold surety, and shall be substantially in the following form: ‘A. B. and C. D. severally acknowledge ourselves bound to the State of Indiana in the sum of - dollars each, if the said A. B. shall not appear at the first day of the next term of (here specify the court) to answer a charge of (here state the offence) at the county of - and State of Indiana, and abide by the judgment of said court. Witness our hands and seals this - day of -, 18-. A. B. [Seal.] C. D. [Seal.] Attest: -, Justice.’

“Sec. 1714. Such recognizance, together with transcript of the proceedings and all papers in the case shall be forthwith filed by the justice with the clerk of the proper court, who shall docket such cause for trial and record such recognizance forthwith, and enter the same on the judgment docket; and from the date of such entry it shall operate as a lien upon all lands in the county of the parties thereto, and any judgment afterward had upon it shall have relation back to the date of such entry.”

The provisions of these three sections of the statute are plain, and cannot be easily misunderstood. The first section requires the prisoner to enter into a recognizance for his appearance at the next term of the court to which the appeal is to be prosecuted, and requires him to execute such recognizance within 10 days. The second section fixes the form of the recognizance, and specifically provides the form thereof. This contemplates that the prisoner with freehold surety shall execute an original undertaking.

If there should be any...