Heath v. State

• Court: Indiana Supreme Court
• Writing for the Court: Elliott, J.
• Citation: Heath v. State, 101 Ind. 512 (Ind. 1885)
• Decision Date: 14 March 1885
• Docket Number: 11,121
• Parties: Heath v. The State

101 Ind. 512

Heath v. The State

No. 11,121

Supreme Court of Indiana

March 14, 1885

Petition for a Rehearing Overruled April 29, 1885.

From the Starke Circuit Court.

Judgment affirmed.

H. R Robbins and A. L. Jones, for appellant.

F. T Hord, Attorney General, G. W. Beeman, Prosecuting Attorney, and W. B. Hord, for the State.

OPINION

Elliott, J.

The charging part of the indictment reads as follows: "Jonathan W. Heath, late of said county, on the 13th day of August, 1880, at the county and State aforesaid, did then and there, two head of cattle, commonly called steers, of the value of sixteen dollars each, of the goods and chattels of William Osborn, then and there being found, did feloniously steal, take and drive away." We perceive no substantial infirmity in this indictment, although it is not very cleverly drawn. There is a repetition of the verb did, and a departure from the usual arrangement of words, by placing the object after the auxiliary verb, but there is neither uncertainty in the averments nor lack of substantive facts in the statements of the pleading.

The failure of the clerk to enter the indictment in the order-book can not be made the ground of a motion to quash.

The omission of the clerk to record the indictment in the order-book did the appellant no injury, and supplies him with no valid ground for a reversal.

A recital in the record, that the grand jury come into open court and present an indictment, followed by an indictment, is sufficient to show its due return. Mathis v. State, 94 Ind. 562.

The verdict against the appellant was returned on the 18th day of October, 1882. The appellant's counsel state in their brief, that "after the verdict was rendered, and before judgment was pronounced, the defendant fled and made default on his bond, but was re-arrested in July, 1884, and brought before the court at its next session, to wit, the October term, 1884, when he filed his motion for a new trial." It is doubtful whether a defendant who flees, and remains beyond the jurisdiction of the court for two years, has a right to file a motion for a new trial, for to tolerate such a practice would put the State at great disadvantage, and open the door to flagrant abuses. Sargent v State, 96 Ind. 63. But, granting that he may file such a motion, we think that he can not at so late a day secure any valid exceptions to the rulings on the trial, and can take no effective bill of exceptions. The statute provides that "Exceptions must be taken at the time of the trial." R. S. 1881, section 1847. It seems clear that where the defendant voluntarily absents himself for two years after the return of the verdict, h...