State v. Howe
| Decision Date | 24 February 1953 |
| Docket Number | No. 28939,28939 |
| Citation | 110 N.E.2d 633,231 Ind. 645 |
| Parties | STATE v. HOWE. |
| Court | Indiana Supreme Court |
J. Emmett McManamon, Atty. Gen., William T. McClain and Thomas J. Faulconer, III., Deputies, for appellant.
Jesse E. Bedwell, Sullivan, for appellee.
The record provided by appellant in this action is quite imperfect, and appellant's brief is of little assistance to us. The appellee has not filed a brief, or otherwise appeared in this court.
In this situation the appeal might be dismissed, but we shall do the best we can to decide such matters as are presented.
The record indicates that appellee was charged by affidavit with the crime of assault and battery with the intent to commit a rape. The affidavit seems to have been filed on October 5, 1951, and the cause was numbered 9634 in the Sullivan Circuit Court.
On March 10, 1952, appellee filed his verified motion to dismiss the charge under § 9-1129, Burns' 1942 Replacement because of the state's delay in bringing the cause to trial.
In this motion he alleged that he was originally charged with the identical offense in the same court on February 7, 1951, which cause was numbered 9517. That he was released on his recognizance bond on February 7, 1951, and remained on bond until October 5, 1951, when the prosecuting attorney filed his motion to dismiss the cause for want of prosecution. On the same date the prosecuting attorney filed that present affidavit which is identical with the affidavit he had dismissed that day. That appellee on that date was again put on recognizance bond and remained on such bond until his verified motion for discharge was acted upon and sustained by the trial court. He averred his own freedom from delaying tactics or procedure and that all the delay was caused by the state. That the delay so caused was for more than three successive full terms of the court.
As far as we can learn from the record before us the motion was tried upon an agreed stipulation of facts and probably other evidence. However, the stipulation of facts or other evidence has not been brought before us in a properly authenticated bill of exceptions and is therefore not in the record. Citizens Insurance Company v. Harris, 1886, 108 Ind. 392, 9 N.E. 299. Morrison v. Morrison, 1896, 144 Ind. 379, 43 N.E. 437. Reddick v. Board of Commissioners of Pulaski County, 1895, 14 Ind.App. 598, 41 N.E. 834, 43 N.E. 238. Wright v. Shelt, 1897, 19 Ind.App., 1, 48 N.E. 26.
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Finney v. Carter's Estate
...appellant's contentions. We may consider this appeal on its merits even though no appellee's brief has been filed. State of Indiana v. Howe, 1953, 231 Ind. 645, 110 N.E.2d 633. However, such failure on the part of appellee is tantamount to a confession of error, and this court may reverse i......
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Hill v. Hill, 20269
...We hold here that a prima facie case for reversal is not established and the motion to reverse is denied. State of Indiana v. Howe (1953) 231 Ind. 645, 110 N.E.2d 633; Finney v. Estate of Carter, etc. (1960) 130 Ind.App. 381, 164 N.E.2d 656; Flanagan, Wiltrout and Hamilton, Indiana Trial an......
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Bundy v. Concrete Ready-Mix Co., READY-MIX
...the merits even though appellee has not filed a brief. Finney v. Estate of Carter, Ind.App.1960, 164 N.E.2d 656. State of Indiana v. Howe, 1953, 231 Ind. 645, 110 N.E.2d 633. Failure by appellee to file such brief may warrant a reversal if appellant's brief makes an apparent or prima facie ......