Sargent v. State

• Decision Date: 04 June 1884
• Docket Number: 11,563
• Citation: 96 Ind. 63
• Parties: Sargent v. The State
• Court: Indiana Supreme Court

96 Ind. 63

Sargent v. The State

No. 11,563

Supreme Court of Indiana

June 4, 1884

From the Fulton Circuit Court.

The appeal is dismissed, with costs.

I Conner, for appellant.

F. T Hord, Attorney General, E. C. Martindale, Prosecuting Attorney, W. B. Hord and W. W. McMahan, for the State.

OPINION

Howk J.

In this case the appellant, Sargent, was indicted, tried by a jury and found guilty of the felony which is defined in section 1935, R. S. 1881. Over his motions for a new trial and in arrest of judgment, the court adjudged in accordance with the verdict, on the 1st day of March, 1884, that he, George M. Sargent, be confined in the State prison north for the term of two years; that he be disfranchised and rendered incapable of holding any office of trust or profit for the space of two years; and that he pay to the State of Indiana a fine in the sum of $ 20, and the costs of this prosecution. On the same day he prayed an appeal to the Supreme Court, which was granted, and sixty days were given him in which to prepare and file his bill of exceptions. This bill was accordingly signed by the judge, and filed on the 13th day of March, 1884, and within the time given.

On the 2d day of April, 1884, the record of this cause and an assignment of errors endorsed thereon, in the name of George M. Sargent as appellant, were filed in this court.

The first matter which requires our attention in this case is the motion of the attorney general, on behalf of the State, to dismiss the appeal. This motion is founded on an affidavit, in substance, as follows:

"William T. Butler, being duly sworn, says that he is now, and has been for more than three years last past, the sheriff of said Fulton county, Indiana; that, as such sheriff, he had charge of the above named defendant, George M. Sargent, who was, at the February term of said Fulton Circuit Court, convicted of receiving stolen goods and was duly sentenced by the court to be confined in the State prison north for the space of two years; that, on the 4th day of March, the clerk of said Fulton Circuit Court issued and delivered to him, as such sheriff, an order to take said George M. Sargent to said prison; that, on the 11th day of March, 1884, while this affiant was preparing to take said Sargent to said prison, the said George M. Sargent escaped and has never been seen by this affiant or by any of his deputies; that he never has been confined in said prison, under said order, and that he, the said George M. Sargent, is now at large as an escaped convict."

This affidavit was subscribed and sworn to, on the 18th day of April, 1884, and it and the motion of the attorney general were filed in this court, on the 22d day of April 1884.

The question presented for decision, by the motion of the attorney general on behalf of the State, in this case, is a new one in this court; although the like question has often been considered and decided by other courts of last resort. It will be observed that it is shown by the affidavit of the sheriff of Fulton county, upon which the motion to dismiss is founded, that the appellant, Sargent, escaped from his custody on the 11th day of March, 1884, and is at large as an escaped convict. He was not, therefore, in the custody or under the control of the trial court or its officers, at the time the bill of exceptions appearing in the record was signed and filed on the 13th day of March, 1884, or at the time notice of this appeal was served, as required in section 1887, R. S. 1881, on the clerk and prosecuting attorney on the 12th and 13th days of March, 1884, respectively. The appellant's attorney on the trial of the cause, in the circuit court, has appeared to the motion filed by the attorney general, in this court; but he has not attempted to controvert any of the facts stated in the affidavit, upon which such motion is founded. It must be...