Sawyer v. State

• Decision Date: 28 May 1861
• Citation: 16 Ind. 93
• Parties: Sawyer v. The State
• Court: Indiana Supreme Court

16 Ind. 93

Sawyer v. The State

Supreme Court of Indiana

May 28, 1861

APPEAL from the Johnson Circuit Court.

The judgment is reversed. Cause remanded.

C. C Nave, S. J. Oyler and Woollen, for the appellant.

J. E McDonald, Attorney-General, for the State.

OPINION

Davison J.

This was a prosecution instituted in the Hendricks Circuit Court, against Iredel Sawyer and Thornton Sawyer; against the former, for the murder of James Cooper, and against the latter as an accessory before the fact. The indictment was returned into Court on August 23, 1859 the title thereof entered on the order book of the Court, and the same duly recorded in the indictment record of Hendricks county. At the August term, 1859 Thornton Sawyer was tried separately, and convicted; and at the February term, 1860, Iredel Sawyer, on affidavit, obtained a change of venue to Johnson county. And it was thereupon ordered, that the clerk of the Hendricks Circuit Court make out a certified copy of the proceedings therein, and transmit the same, together with all the necessary papers in the cause, to the clerk of Johnson county; and it was further ordered that the defendant, Iredel Sawyer, be committed to the custody of the sheriff of said county. There is in the record before us, what purports to be a certified transcript of the proceedings in the cause before the Hendricks Circuit Court, which professes to set out a copy of the indictment; but it does not appear that the indictment itself, was ever filed in, or transmitted to, the Johnson Circuit Court. At a term of that Court held in May, 1860, the defendant moved to be discharged, on the ground that said Court had no jurisdiction of the cause; but his motion, the Court having inspected the premises, was overruled, and he excepted. Afterward, at the September term, 1860, of the same Court, the issue was submitted to a jury, who returned the following verdict: "We, the jury, find the defendant guilty, as charged in the indictment, of murder in the first degree; and assess his punishment for life in the State prison." The defendant thereupon moved for a new trial, and in arrest; but his motions were overruled, and judgment rendered on the verdict. As has been seen, the record fails to show that the indictment charging the crime "was ever filed in, or transmitted to, the Johnson Circuit Court;" but it does show, "that the defendant, at an early stage of the proceedings in that Court, moved his discharge from the prosecution on the ground of want of jurisdiction." Hence, the inquiry arises, can this Court intend that the case made against the defendant was legitimately before the Johnson Circuit Court. The statute in relation to changes of venue, says: "When the affidavit is founded upon excitement, or prejudice in the county, against the defendant, the Court may, in its discretion, grant a change of venue to the most convenient county. The clerk must thereupon make a transcript of the...