Mahoney v. State
| Decision Date | 03 November 1931 |
| Docket Number | 26058.,Nos. 26057,s. 26057 |
| Citation | 203 Ind. 200,178 N.E. 233 |
| Parties | MAHONEY v. STATE. BRIER v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Fountain Circuit Court; N. W. White, Special Judge.
Jack Mahoney and Lowell Brier were convicted of automobile banditry, and they appeal separately. On State's motion to dismiss appeals.
Appeals dismissed.
Mark L. Thompson, of LaFayette, for appellants.
The state has filed motions to dismiss these appeals on the ground that the appellants in filing them have failed to comply with section 16, c. 132, Acts 1927; section 2382, Burns' Ann. St. 1929 Supp., which provides, among other things, that “the transcript must be filed within sixty days after the appeal is taken.”
Both records (transcripts) were filed in this court on June 15, 1931. The cases were tried and the judgments rendered January 25, 1931, and a motion for a new trial in each case was overruled February 25, 1931. Attached to each record is a notice of appeal given by the appellant to the prosecuting attorney, together with acknowledgment of the service thereof. These notices and acknowledgments of service are not dated. The appellee with its motions to dismiss these appeals has filed affidavits of the prosecuting attorney that the notices were served on him on February 25, 1931. The appellants have filed answers in which they alleged that the notices were served personally on the prosecuting attorney “in the presence of a witness” on May 6, 1931. Appellant's attorney has filed an affidavit accompanying his answer in each case, stating that he served the notice on May 6, 1931, but the witness is not named, nor is there any affidavit from the witness.
[1][2][3][4] This court is not in position to determine from these affidavits the fact as to the time notice of the appeal was served on the prosecuting attorney. The affidavit on behalf of the appellant was made by a member in good standing of the bar of this court, and the affidavits on behalf of the appellee was made by the prosecuting attorney of the Sixty-First judicial circuit. As between them, we cannot determine who is correct and who is mistaken. In this situation we must be governed by the record as we find it, and, in the absence of an affirmative showing that the record was filed within 60 days after notice was given to the prosecuting attorney, we cannot presume the existence of such fact. A presumption of regularity exists with reference to action taken by the trial court, but there is no presumption with reference to the time some act is performed by a party appealing from a judgment. To bring himself within the terms of the statute allowing his appeal (Burns' Ann. St. 1926, § 2377 et seq., as amended), he must affirmatively show that he has complied with its requirements.
[5] Where the defendant in a criminal case appeals, it is not necessary to serve a notice of appeal on the clerk. Darr v. State (1882) 82 Ind. 11; Ex parte Huffman (1914) 181 Ind. 241, 243, 104 N. E. 511; section 330, c. 169, Acts 1905, section 2384, Burns' Ann. St. 1926, provides, in part, that: Section 2382, Burns' Ann. St. Supp. 1929, as already noted, provides that the transcript must be filed within sixty days after the appeal is taken.
[6][7] An appeal by a defendant in a criminal case is deemed to have been taken, by virtue of the service of notice on the prosecuting attorney of intention to take an appeal, as of the date of such service, Dudley v. State (1928) 200 Ind. 398, 161 N. E. 1, and cases cited; Winsett v. State (1876) 54 Ind. 437;Price v. State (1881) 74 Ind. 553, and, where the transcript is not filed within 60 days after the appeal is so taken-the time provided by section 16, c. 132, Acts 1927-the appellate court does not have jurisdiction of the appeal, and it will be dismissed. Dudley v. State, supra.
[8][9] If, however, a defendant does not perfect his...
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