Pritchett v. Cox

• Decision Date: 26 January 1900
• Citation: 56 N.E. 20,154 Ind. 108
• Parties: PRITCHETT v. COX, Sheriff.
• Court: Indiana Supreme Court

154 Ind. 108

56 N.E. 20

PRITCHETT

v.COX, Sheriff.

Supreme Court of Indiana.

Jan. 26, 1900.

Appeal from circuit court, Knox county; George W. Shaw, Judge.

Habeas corpus proceedings by James M. Pritchett against John C. Cox, sheriff. From a judgment remanding plaintiff to custody, he appeals. Affirmed.

Samuel W. Williams and Ella McCarthy, for appellant. B. M. Willoughby, J. M. House, and W. A. Hoover, Pros. Atty., for appellee.

DOWLING, J.

This was an application for a writ of habeas corpus. The complaint, which was verified, stated, in substance, that the petitioner was wrongfully restrained of his liberty at the county of Knox, in the state of Indiana, by John C. Cox, the sheriff of said county; that the cause of such restraint was a commitment by one E. A. Beach, a justice of the peace of said county, upon a judgment in favor of the state of Indiana and against the petitioner for a fine of $5, with costs taxed at $27.95; that said restraint was illegal, because (1) said petitioner had violated no criminal law of the state of Indiana; (2) because said judgment was void; (3) because said justice had sustained a motion in arrest of judgment in said cause; (4) because the affidavit on which said judgment was rendered did not state facts sufficient to constitute a violation of any criminal law of the state of Indiana; (5) because the person to whom the mittimus was delivered was not a qualified constable of said county, and was not authorized by law to execute the said writ; and (6) because a fee of $10 was wrongfully taxed in favor of the “fish commissioner” as a part of the costs of the case. A writ of habeas corpus, directed to the appellee, as sheriff of Knox county, was issued by the court, and was duly served. The officer made his return to the writ, showing that the petitioner had been duly charged before a justice of the peace of the county with having in his possession a “trammel net”; that the cause was tried; that the petitioner was, by the judgment of said justice, duly given, convicted of the offense charged, and was fined five dollars; that it was adjudged by said justice that the petitioner be confined in the jail of said county until said fine and the costs of said action be paid or replevied, and that the petitioner had failed to pay or replevy said fine and costs; that the said justice, by a mittimus, a copy of which was filed with and made a part of said return, committed the petitioner to the county jail of said county; that said respondent, as the sheriff of said county, received the petitioner under said mittimus from Joseph S. Manning, a duly-appointed special constable of said township, and held him in custody thereunder, and not otherwise, and that said fine and costs had not yet been paid or replevied. Appellant excepted to said return on the grounds that it did not state facts sufficient to show that the restraint of said petitioner was legal; that the mittimus referred to did not show that petitioner was charged with unlawfully having in his possession a “trammel net”; that the return did not show that the judgment upon which the commitment was made was yet in force; that said return did not deny the allegation of the petition that a motion in arrest of the said judgment was sustained by the said justice; that said return was insufficient in law; that said return did not deny the allegation of the petition that a portion of the costs was illegally taxed; and that the return disclosed a delay of 105 days in issuing said mittimus. The exceptions were overruled, and a reply was filed, denying all the matters set forth in the return. The evidence was heard, and there was a finding that the defendant did not illegally restrain the petitioner, but that the petitioner was lawfully in his custody. Judgment was rendered upon the finding that the petitioner be remanded to the custody of the sheriff until discharged by due process of law, and that he pay all costs of the proceeding. A motion for a new trial was overruled, and the petitioner appealed from the judgment. Errors are assigned as follows: (1) The court erred in overruling plaintiff's exceptions to the return of the defendant to the writ of habeas corpus herein; (2) the court erred in its finding for the defendant herein; (3) the court erred in refusing to order the discharge of the petitioner from the custody of the defendant; (4) the court erred in rendering judgment against plaintiff, petitioner, for costs herein; (5) the court erred in overruling plaintiff's motion for a new trial.

Only two of these assignments-the first and the fifth-are properly made, but, under these, all of the objections urged in the argument of counsel may be considered. It is contended that the finding of the court was wrong (1) because the affidavit upon which the appellant was convicted did not charge a public offense; (2) because the justice of the peace before whom the cause was tried sustained a motion in arrest of judgment, and discharged the petitioner; and (3) because the writ of mittimus was not issued until the expiration of 105 days from the time the supposed judgment was rendered. The evidence is set out in the bill of exceptions, showing the proceedings before the justice of the peace, and a judgment, regular in form, in favor of the state of Indiana and against the appellant, for a fine of five dollars and the costs of the action, and that the appellant stand committed until the fine and costs be paid or replevied. The date of the judgment is September 22, 1899. It also appears that on the 6th day of January, 1900, mittimus, in due form, was issued to a constable specially...