State v. Rardon
| Decision Date | 17 February 1943 |
| Docket Number | 27773,27774. |
| Citation | 46 N.E.2d 605,221 Ind. 154 |
| Parties | STATE v. RARDON. SAME v. MONTGOMERY. |
| Court | Indiana Supreme Court |
[Copyrighted Material Omitted]
Geo N. Beamer, Atty. Gen., and Norman E. Duke, Deputy Atty. Gen for appellant.
Royal L. Lease, of Valparaiso, for Montgomery.
This is an appeal by the State of Indiana from the finding and judgment of the Porter Superior Court in two separate criminal actions which have been consolidated for this appeal. In these matters the court sustained the appellees' motions to quash the affidavits charging the appellees with the crime of escape.
The appellees were each serving a term in the Indiana State Prison for the crime of burglary, upon conviction and sentence from the Circuit Court of Carroll County, Indiana. We gather from the record that while they were restrained as inmates of the Indiana State Prison, the appellees were each taken to or removed to a farm in Porter County, Indiana, which is operated by the Indiana State Prison. Further we gather that on or about the 30th day of June, 1941, each of the appellees left the prison farm in Porter County, without permission or authority of the officers in charge, and having been apprehended, the appellant, the State of Indiana, on the 13th day of December, 1941, filed affidavits in the Porter Superior Court against each of the appellees, which affidavits, omitting the caption and signatures and allowing for the named defendant, were as follows:
'Edgar Wetzel swears that Manford Rarden late of the County and State aforesaid, on or about the 30th day of June, A. D., 1941, was then and there, at and in said County and State a convict confined in the prison farm of the Michigan City Penitentiary, which prison farm is situated in Porter County, duly committed to said prison for the crime of second degree burglary, from the County of Carroll in said State, and did then and there, while so confined on said state farm and prison, feloniously escape and break away from prison, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Indiana.'
The affidavit against Loran Montgomery also filed on said date was identical with the above.
Warrants were issued on the affidavits and bonds were set at two thousand dollars ($2,000), and on February 25, 1942, the court ordered the release of the appellees from the Indiana State Prison in order that they might be present at the trial, and on February 27, 1942, the defendants, and each of them, were arraigned in open court and each entered a plea of not guilty. On March 25, 1942, each of the appellees filed a petition wherein it was requested that each be permitted to defend as a poor person, and on March 26, 1942, the request of each of the appellees was granted and leave given to withdraw pleas of not guilty, and thereupon, each filed a motion to quash the affidavit, which motions, omitting the formal parts, read as follows:
'The defendant herein moves the court to quash the affidavit herein on the following grounds:
'1. That the facts stated in the affidavit do not constitute a public offense.
'2. That the court does not have jurisdiction of said cause.
Thereafter on April 2, 1942 the court having heard argument on said motions rendered an opinion sustaining the motions and on April 7, 1942, the appellees moved that the appellant be required to plead further, and the appellant thereupon refused, and an appeal was prayed and granted, and on May 12, 1942, notice of appeal was duly served on the Clerk of the Porter Superior Court and Royal L. Lease, attorney for the appellees, and on June 17, 1942, the appellant filed a motion for judgment which was granted and the appellees weer then acquitted and ordered remanded to the custody of the warden of the Indiana State Prison to serve the remainder of the term for which each of them was originally committed by the Carroll Circuit Court.
The crime of escape as charged here is set forth in § 10-1807, Burns' 1942 Replacement, § 2651, Baldwin's 1934, Acts 1905, ch. 169, § 503, p. 584.
Under Acts 1941, ch. 179, p. 536, subsection (b) of § 3, Burns' Ann. § 52-1104(b) the Public Welfare Department is given supervision of all correctional activities, including the operation of all the penal reformatories and correctional institutions of the state, and under subsection (n) of § 3 said department is given the right to classify the patients and inmates of the respective institutions of the state and transfer patients and inmates from one penal institution to another at will.
In the case of Mellot v. State, 1942, 219 Ind. 646, 40 N.E.2d 655, 656, this court had for consideration a case appealed from the Putnam Circuit Court wherein Russell Mellot was convicted of unlawfully escaping from the Indiana State Farm. Mellot was originally convicted in the Circuit Court of Elkhart County and the judgment of that court was that he be imprisoned in the Indiana State Prison for a period of not less than one year nor more than five years and fined in the sum of one hundred dollars ($100), and under that judgment Mellot was committed to and confined in the Indiana State Prison. About sixty days afterward Mellot was transferred from the Indiana State Prison to the Indiana State Farm pursuant to an order of the Department of Public Welfare as provided by § 52-1104, Burns' 1933 (Supp.), § 14078-5, Baldwin's Supp.1941, Acts 1941, ch. 179, p. 536, subsection (n) of § 3.
Mellot not being satisfied with the Indiana State Farm left the State Farm and went back to the Indiana State Prison and an affidavit charging escape was filed against him in the Putnam Circuit Court, and he thereupon went back to the State Farm and was tried on the charge of escape and convicted in the Putnam Circuit Court for unlawfully escaping from the Indiana State Farm. In that case this court said:
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