Epstein v. State

• Decision Date: 08 October 1920
• Docket Number: No. 23637.,23637.
• Citation: 128 N.E. 353,190 Ind. 693
• Parties: EPSTEIN v. STATE.
• Court: Indiana Supreme Court

190 Ind. 693

128 N.E. 353

EPSTEIN

v.STATE.

No. 23637.

Supreme Court of Indiana.

Oct. 8, 1920.

Appeal from Criminal Court, Marion County; James A. Collins, Judge.

On petition for rehearing. Petition overruled.

For former opinion, see 127 N. E. 441.

Jackiel W. Joseph and Henry Abrams, both of Indianapolis, for appellant.

WILLOUGHBY, J.

Appellant in his petition for rehearing insists that section 3 of ch. 143, p. 523, Acts of 1917, requires this court to consider the case upon its merits, although appellant failed to comply with section 5 of rule 22 of this court (55 N. E. vi), which requires that the briefs shall set out a concise statement of so much of the record as presents every error and exception relied on. In other words, he contends that by statute the Legislature abolished the rule named. In his brief he says:

“There is no doubt but that appellant's brief does not present the questions sought to be presented under the rules of this court, unless section 3, chapter 143, of the Acts of 1917, is constitutional and binding upon this court. The appellant believes that the act above referred to is constitutional, and will endeavor in this brief to convince this court that its decision in Solimeto v. State, 188 Ind. 170, 122 N. E. 578, is incorrect, and that the same should be overruled.”

In support of his contention appellant cites section 1373, Burns' 1914, and Parkison v. Thompson, 164 Ind. 609, 73 N. E. 109, 3 Ann. Cas. 677. Section 1373, Burns' 1914, provides that the Supreme Court-

“shall have authority: First. To frame, direct, and cause to be used, all process; to establish modes of practice which may be necessary in the exercise of its authority, and to make regulations respecting the same, and cause them to be printed. *** Fourth. To establish regulations respecting proceedings which are requisite in such court in the exercise of its authority, not specially provided for by law.”

[1] Appellant's contention is that the court derives its authority to make rules from this statute. While this statute grants the court the power to frame rules, it is quite clear on principle, as well as upon authority, that the court had such power without the statute. This court is a constitutional court, and as such receives its essential and inherent powers, rights, and jurisdiction from the Constitution, and not from the Legislature, and it has power to prescribe rules for its own direct government, independent of legislative enactment. See Elliott's Appellate Procedure, § 7; Smythe v. Boswell, 117 Ind. 365, 20 N. E. 263; Ex parte Griffiths, 118 Ind. 83, 20 N. E. 513, 3 L. R. A. 398, 10 Am. St. Rep. 107. In Parkison v. Thompson, 164 Ind. 609, 73 N. E. 109, 3 Ann. Cas. 677, cited by appellant, the court, in discussing a statute relative to the consideration of the evidence on appeal, said:

“The court's power to prescribe rules regulating the conduct of its business is inherent in the tribunal. It does not depend on any authority granted by the Legislature. While the latter may prescribe rules of procedure and pleading, by which both courts and parties in the cause are bound, nevertheless it cannot, under the Constitution, encroach on judicial domain by prescribing the manner and mode in which the courts shall discharge their judicial duties. The Legislature has no more right to break down the rules prescribed by this court for conducting its official business than the court has to prescribe the...