Flatter v. State
| Decision Date | 10 December 1914 |
| Docket Number | 22,638 |
| Citation | 107 N.E. 9,182 Ind. 514 |
| Parties | Flatter v. State of Indiana |
| Court | Indiana Supreme Court |
From Delaware Circuit Court; William A. Thompson, Judge Pro Tem.
Prosecution by the State of Indiana against Luther Flatter. From a judgment of conviction, the defendant appeals.
Reversed.
George W. Cromer, Edward Templer, Edward M. White, Alexander G Cavins, Harry Long and Van L. Ogle, for appellant.
Thomas M. Honan, Attorney-General, and Edwin Corr, for the State.
Prosecution by the State under § 8351 Burns 1914, Acts 1907 p. 689 for unlawfully keeping, running and operating a place where intoxicating liquors were unlawfully sold, bartered and given away, and being unlawfully in possession of intoxicating liquors for the purpose of unlawful sale, barter and giving away. There was a trial and conviction, and judgment against appellant. The error assigned and not waived, is in overruling the motion for a new trial.
We are confronted at the threshold of the case with the urgency of the Attorney-General, that a motion for a new trial was waived by appellant. The basis for this claim is the fact that judgment was rendered August 25, 1913, over the objection and exception of appellant to the rendition of judgment before the time allowed him by statute to file motion and causes for a new trial. At that time appellant gave notice to the clerk and prosecuting attorney of appeal to this court, and made application for, and was admitted to bail, and was allowed ninety days to perfect his appeal and to file his bill of exceptions. A transcript was filed in this court November 22, 1913, and docketed as cause No. 22,550, which was dismissed April 28, 1914. The motion for a new trial was filed September 4, 1913, and overruled November 13, 1913. The position of the State is, that after appellant had given notice of appeal and had been let to bail, jurisdiction of the Delaware Circuit Court was divested, and jurisdiction of the cause transferred to this court, and that there was no further jurisdiction in the Delaware Circuit Court, and that a motion for a new trial was waived, and a motion filed in that court September 4, 1913, saved no question. We cannot concur in the position of the State. The statute gives thirty days from the return of the verdict or finding in which to file a motion for a new trial. § 2158 Burns 1914, Acts 1905 p. 584, § 282. The statute also provides for persons convicted being let to bail pending an appeal. §§ 2218a, 2218b Burns 1914, Acts 1911 p. 410. These provisions must receive a reasonable construction in order to effect the legislative intention as to both. If, as in this case, judgment is pronounced before a motion for a new trial is filed, as the legislature must have had in mind could be done, and if the notice of appeal and application and letting to bail divests jurisdiction of the trial court, it must be manifest that no question which depends on a motion for a new trial for its foundation could be saved, and such construction should not be given these statutes. It is manifest that the statute was intended to let convicted persons to bail pending an appeal, but if the construction of the statute urged by the State be the correct one, then where judgment is pronounced before the motion for a new trial is filed, the party is put in the position either of suffering the penalty for lack of giving bail, or if he does, of waiving any right depending on the motion for a new trial. However, in this case an appeal was in no event perfected until the transcript was filed with the assignment of errors in this court, and this was long after the motion for a new trial was filed and ruled on. The filing of that transcript was unnecessary under the State's own theory, that is, that the appeal was taken upon the notice being given, unless it is desired to present some question not dependent on a motion for a new trial. An appeal can not be said to have been taken, or to have reached the appellate tribunal until all the essential steps required to perfect it have been taken, including the filing of a transcript and assignment of errors, and giving notice either in advance of filing the transcript, or thereafter. State v. Sutherlin (1905), 165 Ind. 339, 75 N.E. 642; Lake Erie, etc., R. Co. v. Watkins (1902), 157 Ind. 600, 62 N.E. 443; Beggs v. State (1890), 122 Ind. 54, 23 N.E. 693; Henderson v. Halliday (1857), 10 Ind. 24; Hollingsworth v. State (1856), 8 Ind. 257. True we have cases in which it is held that an appeal in a criminal action is taken by the service of notice as required by statute, but as applied in the construction of the statutes before us, they must be held to relate to the final judgment, or the ruling which renders the judgment final, in case it is pronounced before a motion for a new trial is ruled on, when the latter is necessary to present a question sought to be appealed from, in which case the judgment becomes final when the motion for a new trial is denied. We conclude therefore that in order to carry into effect the legislative intent, the two sections must be considered together, and that where judgment is rendered before the motion for a new trial is filed, and notice of appeal is given, and application for bail made and bail approved, and the motion for a new trial is necessary to save the questions of alleged error, and is filed within the statutory period, jurisdiction of the trial court is not divested, because ruling on the motion is a duty and function of the trial court. Any other construction would make the statute for bails a trap, instead of what is manifestly intended, and that is to prevent infliction of the penalty until an opportunity to review for alleged error can be had. The bill of exceptions containing the instructions was tendered to the court within the time allowed, though signed and filed after the sixty days allowed. This was sufficient. Robinson v. State (1899), 152 Ind. 304, 53 N.E. 223; Smith v. State (1896), 143 Ind. 685, 686, 42 N.E. 913.
In empaneling the jury twelve men were first sworn and examined on their voir dire, and answered that they were members of the regular panel. Of these twelve, one Justice was peremptorily challenged by appellant. One Black was called in his stead. Black stated under oath that he had served as a juror in the Delaware Circuit Court the week previous, and he was then challenged for that reason and the challenge not allowed, and exception reserved. Appellant then challenged one Johnson one of the original twelve, and another man named Moses E. Black was called in his place. He also admitted that he had served at that term of the court as a juror, and he was challenged by appellant for that cause, and the challenge disallowed, and an exception reserved. The State peremptorily challenged one Creen, one of the original twelve jurors, and one Ferguson was called in his stead. Mr. Sheller, one of the original twelve, was then challenged peremptorily by the State, and Mr. Mertz was called in his stead. Both Mertz and Ferguson admitted that they had served on a jury within a year, Mertz at a prior term, and Ferguson at the same term. Challenge of Mertz and Ferguson for former service was made by appellant, each disallowed, and exception reserved by appellant, who then challenged Mertz peremptorily, and he was excused, and one Klopfer put in his place. The State challenged Klopfer peremptorily and he was excused, and one Whitely put in his place. Appellant's peremptory challenges were at that time exhausted. Whitely was then challenged by appellant because of...
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