State v. Osborn

• Decision Date: 31 October 1900
• Citation: 58 N.E. 491,155 Ind. 385
• Parties: STATE v. OSBORN et al.
• Court: Indiana Supreme Court

155 Ind. 385

58 N.E. 491

STATE

v.OSBORN et al.

Supreme Court of Indiana.

Oct. 31, 1900.

Appeal from circuit court, Parke county; A. F. White, Judge.

Action by the state against Milton Osborn and others on a forfeited recognizance. From a judgment in favor of defendants, plaintiff appeals. Reversed.J. M. John, F. F. James, W. L. Taylor, Atty. Gen., Merrill Moores, and C. C. Hadley, for the State. Johnston & White and Maxwell & Maxwell, for appellees.

MONKS, J.

An affidavit and information charging one Joel C. Osborn with having committed the crime of rape in Parke county, Ind., were filed in the court below. The court ordered a bench warrant to be issued thereon to the sheriff of said county who arrested said Osborn. Said Osborn appeared in open court on said day, in person and by counsel, and moved the court to quash the affidavit and information, which motion was by the court overruled. Osborn thereupon waived an arraignment, and entered a plea of not guilty to said charge, and, on motion, the cause was continued until the next term of the court, and said Osborn and appellees duly entered into a continuing recognizance for the appearance of the accused to answer said charge. At the next term of the court, the accused failing to appear and answer said charge, said recognizance was duly forfeited, and a judgment of forfeiture was duly entered of record by the court. Suit was instituted against appellees, the sureties on said recognizance, and they filed an answer in two paragraphs. Appellant's demurrers to each of said paragraphs of answer were overruled. A reply was filed to said answer, to which a demurrer for want of facts was sustained by the court, and, appellant failing and refusing to plead further, judgment was rendered in favor of appellees. The only errors assigned, and not waived, call in question the sufficiency of each paragraph of answer.

It is alleged in the first paragraph of answer that the facts upon which the accused was charged occurred wholly in Vermillion county, and not in Parke county; that the crime, if any there was, was committed in Vermillion county; that, since the filing of said affidavit and information in the cause in which said recognizance sued upon was given, the grand jury of Vermillion county, Ind., has presented an indictment against said Joel C. Osborn, wherein and whereby he is charged with the identical and same crime charged against him in the affidavit and information pending in this court, in which action this recognizance was given; and that said indictment is now pending in the Vermillion circuit court, and that said court has jurisdiction of the crime charged. The second paragraph of answer contains the same allegations as the first paragraph, and it is further alleged: That the jurat to the affidavit in the case in which said recognizance was given was as follows: “Subscribed and sworn to before me, this 15th day of May, 1889;” signed, “J. E. Harshbarger.” “That after the arrest of said Osborn on the warrant in said cause, and after the recognizance sued upon was given, an affidavit was filed before a justice of the peace in Vermillion county, Ind., charging said Osborn with the same crime as having been committed in that county. That a warrant was issued thereon by said justice of the peace, and placed in the hands of constable for service, who at once took the same to the home of said Joel C. Osborn, for the purpose of arresting him on said charge. That said Osborn was near his home, in Parke county, and made no effort to leave said county, or conceal himself from the sureties on his recognizance, or any officer or person, but, on learning that the constable was seeking to arrest him on said charge, concealed himself from said constable, and departed from said Parke county, and has remained away and concealed, and where he is now is unknown to these defendants. That said departure and concealment would not have occurred had not said constable sought to arrest him on said warrant for said charge so filed by the state of Indiana before said justice of the peace. That a warrant was issued on the indictment in the Vermillion circuit court, which the sheriff of that county has been endeavoring to execute, which indictment and the case before said justice of the peace are now pending. That when the prosecuting attorney asked the court to enter a judgment of forfeiture of said recognizance, and before any steps were taken for that purpose, these defendants, sureties on said recognizance, filed written objections to said forfeiture (being the same, in substance, as the matters set up in the first paragraph of answer), which objections were overruled by the court, to which appellees excepted.” It is insisted by appellees that the facts alleged in said paragraphs of answer show that the Parke circuit court had no jurisdiction of the offense charged in the affidavit and information, and could not legally require the accused to enter into the recognizance sued upon; that the commencement of the prosecution for the same offense before a justice of the peace of Vermillion county, and the issuance of the warrant for the arrest of said Joel C. Osborn by said justice, and the return of said indictment in Vermillion county as alleged, amounted to a dismissal or discontinuance of the case in which the recognizance was given.

It is true that it has been decided that where a recognizance is taken in a case where the court has no jurisdiction the same cannot be enforced. State v. Winninger, 81 Ind. 51-53;State v. Wenzel, 77 Ind. 428-430. Jurisdiction is the authority to hear and determine a cause. Lantz v. Maffett, 102 Ind. 23-28, 26 N. E. 195, and cases cited; Quarl v. Abbett, 102 Ind. 233-239, 1 N. E. 476, and cases cited; Board v. Markle, 46 Ind. 96;Smurr v. State, 105 Ind. 125, 127, 4 N. E. 445;Spencer v. McGonagle, 107 Ind. 410, 416, 8 N. E. 266. The rule is that when a court has jurisdiction of the general subject, and its jurisdiction of the particular case depends upon a fact or facts which are to be tried and determined, the decision of the tribunal, even though erroneous, is not void, but is conclusive against collateral attack. Tucker v. Sellers, 130 Ind. 514, 517, 30 N. E. 531, and cases cited; McEneney v. Town of Sullivan, 125 Ind. 407-412, 25 N. E. 540, and cases cited.

The affidavit and information charged the accused, Joel C. Osborn, with a felony, and that it was committed in Parke county, Ind. In said criminal cause it was necessary to prove that the offense was committed in the county of Parke as alleged, the same being the territorial jurisdiction of said court, in order to entitle the state to conviction. The fact that the offense set forth in an indictment or affidavit and information was actually committed in a county other than the one alleged does not affect the jurisdiction of the court to try and determine the cause, for the reason that the jurisdiction over the subject-matter of the offense charged depends upon the allegations of said indictment or affidavit and information, and not upon the actual facts. As the allegation that the offense was committed in said county gave the Parke circuit court jurisdiction to try said cause and hear the evidence, and necessarily, therefore, the power to decide the cause, it follows that, if the accused had gone to trial on his plea of not guilty, and the evidence had failed to show that the offense was committed in Parke county, or if it showed that said offense was committed, but not in said county, a conviction would have been erroneous, but not void. This is true, because the authority to decide at all involves the authority to decide wrong as well as right. Spencer v. McGonagle, 107 Ind. 410, 416, 417, 8 N. E. 266;Lantz v. Maffett, 102 Ind. 23, 28, 26 N. E. 195;Snelson v. State, 16 Ind. 29. Such conviction would therefore have been conclusive against collateral attack, not only as to the commission of the offense, but that the same was committed in Parke county, as alleged. See authorities heretofore cited. The only relief from the judgment in such case would have been by presenting the question to the trial court by a motion for a new trial, and, if overruled, an appeal to the proper court. Said Parke circuit court, having jurisdiction to try and determine the case set forth in the affidavit and information, had full and complete jurisdiction to require that said recognizance be given. If, on the trial of a criminal cause, proof that a crime was committed without the territorial jurisdiction of the court,-that is, in a county other than the one alleged,-does not affect the jurisdiction of the court to try said cause, and determine whether right or wrong, it is clear that such an allegation and proof in an action on a forfeited recognizance would be no defense thereto or prevent a recovery thereon.

It is evident that the question of the guilt or innocence of said Joel C. Osborn of the offense charged in the affidavit and information cannot be presented or tried in an action on said forfeited recognizance, nor is his innocence a defense thereto. Dilley v. State, 2 Idaho, 1012-1014, 29 Pac. 48. If not, then no facts contradicting any allegation contained in said affidavit and information, the proof of which would be essential to his conviction in said cause, will constitute a defense to said action on said forfeited recognizance. This is true because the recognizance was given to secure the presence of the accused, in order that the truth of...