Clayborn v. Tompkins

• Decision Date: 05 April 1895
• Docket Number: 17,574
• Citation: 40 N.E. 121,141 Ind. 19
• Parties: Clayborn v. Tompkins
• Court: Indiana Supreme Court

40 N.E. 121

141 Ind. 19

Clayborn v. Tompkins

17,574

Supreme Court of Indiana

April 5, 1895

From the Henry Circuit Court.

The judgment is reversed and the cause remanded, with instructions to the trial court to sustain the exceptions of appellant to appellee's return, and grant leave to appellee to amend his return if he so desires, by showing the jurisdictional facts, if they in fact existed in the justice to require the appellant to enter into a recognizance.

Brown & Brown, for appellant.

F. E Beach, for appellee.

OPINION

McCabe, C. J.

The appellant filed a petition in the circuit court charging the appellee, the sheriff of Henry county, with unlawfully restraining him of his liberty and praying for a writ of habeas corpus.

The writ duly issued and the appellee made a return thereto that he was sheriff of the county and custodian and keeper of the jail of said county, and holds appellant therein by reason of a mittimus issued to him by Thomas J. Johnson, justice of the peace of Henry township, Henry county, State of Indiana reading as follows:

"State of Indiana, "County of Henry,

"Whereas William H. Clayborn was duly subpoenaed to appear before me, an undersigned justice of the peace, on the 9th day of March, 1895, at 10 o'clock A. M. to testify on the part of the plaintiff as prosecuting witness in five cases of the State of Indiana against John Hipes, charged in five affidavits by said William H. Clayborn, prosecuting witness, with unlawfully selling intoxicating liquors to minors; and whereas, said William H. Clayborn was required by me to enter into recognizance with sufficient surety, in the sum of $ 200, for his appearance on said 9th day of March, 1895, at 10 o'clock A. M., to testify as such prosecuting witness in said causes, and the said William H. Clayborn, prosecuting witness, having failed to enter into such recognizance in said sum of two hundred dollars, as required by me.

"To the keeper of the jail of Henry county, Indiana: You are therefore commanded to confine said William H. Clayborn in the jail of said county until discharged by due course of law.

"Dated this 6th day of March, 1895.

"Thomas J. Johnson, J. P. [Seal]."

It appears from this mittimus that appellant had been subpoenaed to appear before the justice on the 9th day of March to testify, as a witness, in certain criminal cases stated on behalf of the State. Three days before the time he was required by the subpoena to appear as such witness, the justice makes an order requiring him to enter into a recognizance, with surety in the penalty of $ 200, to appear in obedience to the process. There are only three cases in which a justice may require witnesses to enter into a recognizance:

"1. Where a continuance of a criminal case is granted.

"2. Where changes of venue are granted on the application of the prisoner.

"3. When the offense charged is a felony and the justice recognizes the accused to appear at the next term of the criminal or circuit court of the county." Burns R. S. 1894, sections 1699, 1701, 1703 (R. S. 1881, sections 1630, 1632, 1634).

Such continuance must be held to mean any necessary postponement or delay of the trial made after the issue of the warrant, even though before the arrest of the accused thereon.

The mittimus does not show that the justice's order that appellant enter into a recognizance, was made in either of the three cases above mentioned. Standing alone, unaided by any presumption, it appears therefrom that appellant had been subpoenaed to appear as a witness before the justice on the 9th day of March, 1895, and that three days before the day set for his appearance the justice ordered him to enter into a recognizance to appear on the same day. If nothing more is shown or presumed the justice had no jurisdiction to make the order requiring him to enter into the recognizance.

The statute on the subject of habeas corpus provides that the sheriff or other person to whom the writ is directed shall make immediate return thereof, signed and verified, which shall state:

1. The authority or cause of the restraint.

2. If the authority be in writing he shall return a copy and produce the original on the...