Ex parte Huffman
| Decision Date | 09 March 1914 |
| Docket Number | 22,610 |
| Citation | 104 N.E. 511,181 Ind. 241 |
| Parties | Ex Parte Huffman |
| Court | Indiana Supreme Court |
Petition in the Supreme Court by William Huffman to be admitted to bail.
Petition dismissed.
Kelley & Leveque and Hamill, Hickey & Evans, for petitioner.
The petitioner, William Huffman, alleges that he was tried by jury in the Vigo Circuit Court and found guilty of a felony on March 4, 1914, and, on the following day was sentenced to the State prison; that he has notified the circuit court that he will file a motion for a new trial, in the time prescribed by law (§ 2158 Burns 1908, Acts 1905 p. 584, § 282) that on March 7, 1914, he served written notice on the prosecuting attorney of Vigo County, and the clerk of said court, that he will file a motion for a new trial in the cause, and promptly prosecute the same, and if such motion be overruled, that he will appeal the cause to this court, and perfect the same, as prescribed by law. He prays this court for an order admitting him to bail "during the pendency of his motion for a new trial," and, in case it be overruled, that such bail be continued pending his appeal to this court.
Relief is here sought under the provisions of an act entitled "* * * providing for * * * bail on appeal in certain criminal cases, * * *," adopted March 4, 1911, § 3 of which was amended in 1913. Acts 1911 p. 410; Acts 1913 p. 647. Section 1, of the act of 1911, provides that where one, convicted of a certain offense, "has appealed such cause or desires to appeal the same and has given notice thereof as required by law, such person shall be admitted to bail pending such appeal upon compliance with the provisions of this act; * * *." Section 2, of said act, provides that when sentence has been pronounced, and judgment entered, "and an appeal has been taken or prayed for, and notice of such appeal has been given as required by law" the defendant may file either in this court, or the lower court, his petition for admission to bail "pending such appeal." It is manifest from a consideration of the title and body of the act of 1911, that the legislature had in contemplation only admission to bail pending an appeal to this court, and consequently, on the facts here stated, this court has no authority to order the petitioner's admission to bail pending the filing and determination of his contemplated motion for a new trial. The petitioner however further asks admission to bail pending his contemplated appeal, in case his proposed motion for a new trial shall be overruled. It is evident that such prayer for relief is premature. The court has not passed on any motion for a new trial, nor has such motion been filed. The filing of such motion has not been waived. On the other hand, the petition shows that it will be filed. An appeal may be taken by a defendant, by the service of notice, after rendition of judgment, on the prosecuting attorney. § 2217 Burns 1908, Acts 1905 p. 584, § 330. Judgment must be pronounced, after a verdict of guilty, "if a new trial be not granted, or the judgment be not arrested." § 2166 Burns 1908, Acts 1905 p. 584, § 290.
No transcript for appeal has been filed in this court, and no notice of appeal has been given as contemplated by § 2217 Burns, supra, and consequently this court is without power to grant the relief prayed. Had petitioner waived his right to file a motion for a new trial and given the statutory notice after the rendition of judgment, a different question would be presented. It is...
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