State, ex rel. Kahn v. Woodward
| Decision Date | 19 March 1890 |
| Docket Number | 14,110 |
| Citation | 23 N.E. 968,123 Ind. 30 |
| Parties | The State, ex rel. Kahn, v. Woodward |
| Court | Indiana Supreme Court |
From the Wells Circuit Court.
Judgment affirmed, with costs.
J. S Dailey, L. Mock and A. Simmons, for appellant.
This was a prosecution for bastardy, and the defendant was found to be the father of the child; and the court ordered the payment of the sum of $ 600 to the relatrix for the maintenance of the child, and on the failure of the defendant to pay or replevy the judgment he was committed to the jail of Wells county. After the expiration of one year the defendant made an application to be released, on the grounds that he had been imprisoned in the county jail one year, and that he was unable to pay or replevy the judgment. The relatrix appeared and objected to his discharge, on the grounds that he had not been confined in jail one year. The court heard evidence in support of the application, and ordered the release of the defendant, and from this order and judgment of the court the appellant appeals, and contends that the court erred in sustaining the motion, or application, of the defendant for his release.
It is contended by counsel for appellant that the evidence in support of the application shows the fact to be that the defendant had not been imprisoned in the county jail for one year, but only for a few weeks, and that the remainder of the time he had his liberty, and went and came at will associated with the family of the sheriff, and was only confined in jail, or under lock and key, as were the family, at night time, being able to leave the house at any time at will. We are not favored with a brief on behalf of the appellee.
The statute, section 992, R. S. 1881, provides that "should the defendant fail to replevy or pay said judgment, and in default thereof be committed to jail, and upon proof thereof being made to the court that the defendant has been imprisoned in the jail of the county for a period of twelve months from the date of his imprisonment, and that he is unable to pay or replevy the same, he may be released from imprisonment by an order of the court, made at any regular term of said court, which order shall be entered," etc.
This statute contemplates a motion or application to be made for the release of the defendant, and that the court shall have proof in support of such application, and if it shall affirmatively appear that the defendant has been imprisoned in the county jail for the period of one year, and is unable to pay or replevy the judgment, the court shall make an order discharging him. If there is any evidence tending to support the finding of the court the case must be affirmed.
We have read the evidence and think counsel are in error in their construction. The evidence shows the defendant to have been under the control of the sheriff all the time, and that he always ate his meals within the prison part of the jail; that by reason of having...
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