Orear v. State

• Decision Date: 14 March 1899
• Docket Number: 2,961
• Parties: OREAR v. THE STATE
• Court: Indiana Appellate Court

53 N.E. 249

22 Ind.App. 553

OREAR v. THE STATE

No. 2,961

Court of Appeals of Indiana

March 14, 1899

Rehearing denied June 27, 1899.

From the Boone Circuit Court.

Affirmed.

Ira M Sharp, for appellant.

W. L Taylor, Attorney-General, Merrill Moores and Rowland Evans, for State.

OPINION

BLACK, C. J.

The appellant was prosecuted for the offense known as criminal provocation, the prosecution being commenced before a justice of the peace of Sugar Creek township, Boone county. Upon the application of the appellant, the venue was changed to a justice of the peace of Jefferson township in that county. Before the latter justice the appellant moved to quash the affidavit, on the ground, as stated in the transcript of the justice, that it did not state the township in which the crime was committed. This motion being overruled, the appellant pleaded guilty, whereupon the justice adjudged that he be fined in the sum of $ 1, etc. The appellant appealed to the court below, where the prosecuting attorney moved to dismiss the appeal, for the reason that the appellant entered a plea of guilty before said justice of the peace of Jefferson township from whom the appeal was taken. This motion was sustained, and, thereupon, the appeal was dismissed.

The appellant has assigned as errors the insufficiency of the affidavit, the sustaining the motion to dismiss the appeal, and the dismissal of the appeal. It is provided by a statute of 1897 (Acts 1897 p. 143, section 1983a Horner 1897, section 1837a Burns Supp.) that prosecutions for criminal provocation, when brought before a justice of the peace, mayor of a city, or city judge, shall be tried in the township where the offender resides, or where the offense was committed, with a proviso that the defendant shall have the right to a change of venue as provided by law in other cases.

It is proper to inquire, first, whether or not an appeal lies from a justice of the peace to the circuit court in a criminal cause wherein there has been a plea of guilty, and judgment has been rendered thereon. It has been held in a number of cases that in a criminal cause the defendant against whom judgment has been rendered upon his plea of guilty, entered in the circuit court, may appeal to the Supreme Court. Henderson v. State, 60 Ind. 296; Arbintrode v. State, 67 Ind. 267, 33 Am. Rep. 86; Burroughs v. State, 72 Ind. 334; Hays v. State, 77 Ind. 450. The statute relating to appeals to the Supreme Court in criminal cases provides that an appeal to the Supreme Court may be taken by the defendant as a matter of right from any judgment in a criminal action against him, and that all appeals must be taken "within one year after the judgment is rendered." Sections 1954, 1958, Burns 1894, sections 1881, 1885 Horner 1897. The statute relating to appeals from justices of the peace in criminal cases provides: "Any prisoner against whom any punishment is adjudged may appeal to the criminal court, and, if there is none, then to the circuit court of the county, within ten days after trial," etc. If the appeal was not authorized by the statute there was no error in dismissing it. State v. Kunbert, 14 Ind. 374. The right of appeal is dependent upon the statute, and the question whether or not the appellant, having pleaded guilty, could appeal to the court below from the judgment of the justice of the peace rendered upon that plea, depends upon the meaning to be ascribed to the word "trial" in the statute last above mentioned. As the appeal can be taken only within a specified period after trial, he could not appeal if there was no trial within the meaning of the statute. In Ledgerwood v. State, 134 Ind. 81, 91, 33 N.E. 631, where there was a plea of guilty, it was said that a motion for a new trial was properly overruled because there had been no trial. In Griffith v. State, 36 Ind. 406, it was said that upon a plea of guilty, a finding is not necessary; that there is nothing for the court to find, and that the court has nothing to do but to fix the amount of punishment and to render judgment or sentence accordingly. "By pleading guilty, the necessity for a trial may be wholly avoided, there being in that case no issue to try." Boswell v. State, 111 Ind. 47, 49, 11 N.E. 788.

Unless it can be said that the hearing and decision upon the motion to quash the affidavit constituted as suggested by the appellant's counsel, a trial, as meant by the statute, it seems plain that there was no trial before the justice of the peace. A comparison of the provision under consideration with other portions of the same statute, in which the word trial occurs (too numerous to be recited here)...