State v. Mabrey
| Decision Date | 14 June 1927 |
| Docket Number | Nos. 24568,24569.,s. 24568 |
| Citation | 157 N.E. 97,199 Ind. 276 |
| Parties | STATE v. MABREY (two cases). |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Monroe Circuit Court.
Prosecutions by the State against Milton Mabrey and against Ed Mabrey. From orders of dismissal for want of prosecution, the State appeals in each case. Order and judgment in each case reversed, with directions.
U. S. Lesh, Atty. Gen., Mrs. Edw. F. White, Deputy Atty. Gen., and Simpson B. Lowe, of Bedford, for the State.
The state brings error, based upon the orders of the trial court, that the causes be dismissed, upon the applications of the defendants, for want of prosecution of defendants, for more than three terms of court (section 220, c. 169, Acts 1905; section 2252, Burns' 1926), each of whom is under recognizance. These two numbered causes were instituted and tried separately in the trial court, and are consolidated, after appeal, by the court.
Each defendant was charged with the commission of a felony, instituted by affidavit approved by the prosecuting attorney, both of which affidavits were filed in the Lawrence circuit court the 11th day of September, which was the 1st judicial day of the September term, 1922. Each of the defendants gave a recognizance bond and each was released from custody.
By agreement of both defendants and the state, the causes were set for trial for the 24th day of November, which was the 5th judicial day of the November term, 1922, of the court. The day set for trial, defendants filed their affidavits and motions for changes of venue from the county, which motions were sustained, and by the court's orders the venue of each cause was changed to the Monroe circuit court.
December 5, which was the 8th judicial day of the November term, 1922, of the Monroe circuit court, the clerk of the Lawrence circuit court filed the transcripts of the proceedings in the Monroe circuit court in each cause had in the Lawrence circuit court.
December 30, the 30th judicial day of the November term, 1922, of the Monroe circuit court, both causes were continued by order of the court.
February 9, the 5th judicial day of the February term, 1923, of the Monroe circuit court, both causes were continued by order of the court.
April 23, the 1st judicial day of the April term, 1923, of the Monroe circuit court, cause No. 24568 was continued by order of the court.
June 2, the 36th judicial day of the April term, 1923, of the Monroe circuit court, cause No. 24569 was continued by order of the court.
October 6, the 24th judicial day of the September term, 1923, of the Monroe circuit court, the defendants filed their verified petitions for discharge, in each of which petitions each defendant alleges that the cause had not been continued on a motion by him, and that the delay of trial had not been caused by any act of his, and that each defendant in his own particular cause had at all times been ready and willing that his cause be tried.
[1][2] Defendants' rights to orders of discharge, by virtue of the statute supra, depend upon the delays of the trials caused by the state and its officers. And delay caused by acts of the defendants may not be countedin their behalf. Alyea v. State (1926 Ind. Sup.) 152 N. E. 801. Each defendant is chargeable for the delay in the trial of his cause, through the change of venue.
[3] The transcripts of the causes, on change of venue, were filed in the Monroe circuit court December 5, the 8th judicial day of the November term, 1922, of that court, upon which day jurisdiction vested in the Monroe circuit court (App v. State [1883] 90 Ind. 73;Fawcett v. State [1880] 71 Ind. 590), there having been no technical objection that the record does not show that the transcript of the proceedings and orders of the court had been deposited by the sheriff of the Lawrence circuit court in the clerk's office of the Monroe circuit court (section 207, c. 169, Acts 1905; section 2239, Burns' 1926). It will be presumed that the transcript of the proceedings and orders with the original papers in the causes were deposited with the clerk of the Monroe circuit court as provided by the statute.
[4] Upon the deposit of such transcript and original papers in the...
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State v. Gardner, 29073
...court has decided prior cases when the appeal was by the state, State v. Beckwith, 1947, 225 Ind. 288, 74 N.E.2d 742; State v. Mabrey, 1927, 199 Ind. 276, 157 N.E. 97; State v. Kuhn, 1900, 154 Ind. 450, 57 N.E. 106, but in none of these cases was the state's right to appeal considered or de......