Lucas v. Hawkins

• Decision Date: 25 May 1885
• Docket Number: 12,329
• Citation: 1 N.E. 358,102 Ind. 64
• Parties: Lucas v. Hawkins, Sheriff
• Court: Indiana Supreme Court

1 N.E. 358

102 Ind. 64

Lucas v. Hawkins, Sheriff

No. 12,329

Supreme Court of Indiana

May 25, 1885

From the Hamilton Circuit Court.

The judgment appealed from is affirmed, with costs.

F. M Trissal, for appellant.

T. J Kane and T. P. Davis, for appellee.

OPINION

Niblack, J.

On the 7th day of May, 1885, which was during the April term, 1885 of the Hamilton Circuit Court, Wiley Lucas presented to that court his petition, representing that he was restrained of his liberty and confined in the common jail of Hamilton county, by Elihu Hawkins, sheriff of that county, upon the pretence, as he was informed and believed, that he is the father of a child alleged to be illegitimate, but averring that he had not been arrested and was not then imprisoned upon any indictment, warrant, lawful process, or valid judgment against him. Wherefore he demanded that a writ of habeas corpus be issued to the said Hawkins as such sheriff, and that the cause of his restraint might be inquired into with a view to his discharge from imprisonment. A writ of habeas corpus was accordingly issued to Hawkins, who made return that in proceedings had before a justice of the peace of Hamilton county, in a case in which the State of Indiana, on the relation of one Alice Minor, was plaintiff, and the said Wiley Lucas was defendant, the said Lucas was adjudged by the justice to be the father of the bastard child of which the relatrix was the mother, and that in default of a recognizance to appear in the circuit court he was committed to the county jail; that afterwards the said Lucas escaped from the custody of the officer having him in charge, and went at large; that thereafter at the February term, 1885, of the Hamilton Circuit Court, and in the absence of the said Lucas, a judgment was rendered as follows:

"The State of Indiana, ex rel. Alice Minor, v. Wiley Lucas. Comes now the relatrix and moves the court for a judgment upon the finding of the court, which motion is now sustained. It is therefore adjudged and decreed by the court that the plaintiff recover of the defendant the sum of six hundred dollars, payable in instalments to said relatrix, Alice Minor, for the support of the bastard child mentioned, as follows, to wit: One hundred dollars in thirty days from this date; one hundred dollars on the 10th day of February each year for five years hereafter; and said defendant is required to replevy this judgment by good freehold surety, or, in default thereof, that he stand committed to the county jail."

That after the rendition of such judgment, the Hamilton Circuit court issued a bench warrant to him, the said Hawkins, as sheriff of his county, commanding him to arrest the said Lucas and have him immediately before the court to answer the charge of bastardy preferred by the said Alice Minor, and to abide the order of the court therein; that he Hawkins, as such sheriff, held the said Lucas in his custody under the commitment of the justice, and under the judgment herein above set out, as well as under the bench warrant above referred to, awaiting the order of the court in the premises.

The petitioner thereupon filed exceptions to the sufficiency of the return, but his exceptions were not allowed. He then moved that, upon the facts stated in the return, he be discharged from the custody of Hawkins, and that motion was also overruled.

Error is assigned here upon the refusal of the circuit court to allow the petitioner's exceptions to the sheriff's return, and upon the overruling of his motion to be discharged from custody.

Section 979, R. S. 1881, provides that upon the arrest of a person charged with bastardy, or upon the return of the warrant for his arrest that he can not be found, the justice, before whom the complaint was filed, shall proceed to hear and determine the matters charged in the complaint. If the justice shall adjudge the defendant to be the father of the bastard child he shall, if the defendant be in custody, require him to give bond, with sureties, to appear at the next term of the circuit court of the county to further answer the complaint against him, and shall transmit such bond, together with a transcript of the proceedings and other papers in the cause, to the clerk of such circuit court, and if such defendant shall fail to give bond as required, such...