State v. Sutherlin

• Citation: 75 N.E. 642,165 Ind. 339
• Decision Date: 24 October 1905
• Docket Number: No. 20,655.,20,655.
• Parties: STATE v. SUTHERLIN.
• Court: Supreme Court of Indiana

165 Ind. 339

75 N.E. 642

STATE

v.SUTHERLIN.

No. 20,655.

Supreme Court of Indiana.

Oct. 24, 1905.

Appeal from Circuit Court, Floyd County; Wm. C. Utz, Judge.

Ulysses G. Sutherlin was indicted for murder in the first degree, and from an order overruling the state's demurrer to defendant's plea in abatement the state appeals. Reversed.

C. W. Miller, Atty. Gen., Geo. B. McIntyre, Jewett & Jewett, and P. B. May, for the State. Alexander Dowling, Stotsenburg & Weathers, and John W. Gaither, for appellee.

JORDAN, J.

An indictment was returned by a grand jury of the Floyd circuit court at its March term, 1905, whereby appellee, Sutherlin, was charged with the crime of murder in the first degree. A warrant was issued, and he was arrested on May 5, 1905, and was held to answer the accusation. Prior to the return of this indictment, he had not been charged before any court or officer with the crime in question. At the first opportunity afforded him, he filed a plea of abatement, whereby he sought to quash and set aside the indictment in dispute, solely on the ground that James W. Dunbar, one of the two jury commissioners appointed by the Floyd circuit court on December 15, 1904, was at the time of his appointment as such jury commissioner ineligible or disqualified to be appointed, and so continued to be by reason of his being a stockholder and a director of the Southern Indiana Traction Company, a corporation against which certain suits triable by a jury were at the time of his appointment pending for trial in said Floyd circuit court. The plea of abatement discloses that said Dunbar and the other jury commissioner acting in that capacity on March 6, 1905, selected the jurors who constituted the grand jury for said court for said March term, 1905, which grand jury, as shown, found and returned the indictment against appellee. The state demurred to the plea in abatement for insufficiency of facts. The demurrer was overruled, to which an exception was duly reserved, and, the state having elected to stand upon its demurrer, the court sustained the plea in abatement, and rendered a judgment in favor of appellee, quashing and setting aside the indictment in controversy. From this judgment the state appeals to this court, and assigns as error that the court erred in overruling the demurrer to the plea in abatement.

At the very threshold we are confronted with appellee's motion, made on special appearance, to dismiss this appeal for the following reasons: “First. It does not appear that notice of an appeal by the state was given to the appellee or to the clerk of the Floyd circuit court, where the judgment was rendered. Second. No assignment of errors has been filed. Third. The supposed assignment of errors filed with the transcript was not signed by the Attorney General, nor by any person authorized by law to represent the state in this cause at the time the said pleading was filed. Fourth. The appellant has not caused marginal notes to be placed on each page of the transcript in their appropriate places, as required by rule 3 of this court (55 N. E. iv).”

After the judgment of the lower court, there is set out in its order book the following entry, which is embraced in the transcript in this appeal:

“And now comes George B. McIntyre, prosecuting attorney, and files notice of appeal from the judgment of the Floyd circuit court, to Ulysses G. Sutherlin, and to Alexander Dowling, Stotsenburg & Weathers, and John W. Gaither, attorneys for said defendant, notice of appeal to Charles B. Scott, Clerk of the Floyd circuit court, and also a præcipe for transcript for appeal to the Supreme Court, which notice is as follows: ‘State of Indiana v. Ulysses G. Sutherlin. To Ulysses G. Sutherlin, Alexander Dowling, Stotsenburg & Weathers, and John W. Gaither, attorneys for defendant: Take notice that I, George B. McIntyre, Prosecuting Attorney of the 52nd Judicial Circuit, have appealed from the judgment of the Floyd Circuit Court in the above-entitled action, made and entered in said court on the 24th day of May 1905. George B. McIntyre. Prosecuting Attorney.’

“‘Notice of the foregoing appeal and service and receipt of a copy thereof are hereby acknowledged this 24th day of May, 1905. A. Dowling, Attorney for Defendant.”’

A notice addressed to the clerk of the lower court is contained in this entry, and is in the same words and figures as the notice to appellee. It was served on the clerk on May 24, 1905, and the service thereof duly acknowledged by that official. The transcript and the assignment of errors were each filed in the office of the clerk of the Supreme Court on May 29, 1905.

The objection interposed by appellee's learned counsel to the notices in controversy is that they do not allege, as required by the statute, that the state of Indiana has appealed, but merely aver that “I, George B. McIntyre, Prosecuting Attorney of the 52nd Judicial Circuit, have appealed,” etc. It is therefore argued that the notices fail to show that the state has appealed from the judgment. This contention, to say the least, under the circumstances, is highly technical, and we cannot yield to it our concurrence.

The Criminal Code, as enacted by the Legislature of 1905, was in full force and effect at and prior to the time of the taking of this appeal, and possibly its provisions govern therein, unless it can be said that the repealing section of the statute of 1905, pertaining to criminal procedure and public offenses requires a holding that the Criminal Code of 1881 must control. But it is wholly immaterial which of these Codes govern, for the reason that, so far as their provisions are applicable to the question as here presented, they are substantially alike. Section 1955, Burns' Ann. St. 1901, authorizes an appeal by the state from a judgment quashing or setting aside an indictment or information. Section 325, Acts 1905, p. 656, authorizes an appeal from a judgment quashing or setting aside an indictment or affidavit. As a material step in taking an appeal, the state is required to serve a written notice upon the clerk of the court wherein the judgment was rendered, stating that the appellant, i. e. the state of Indiana, appeals to the Supreme or Appellate Court, as the case may be, from the judgment, and a similar notice must be served upon the defendant or his attorney. See section 1960, Burns' Ann. St. 1901; section 330, Acts 1905, p. 656. The statute declares that an appeal, if the court is in session-that is, the court to which the appeal is taken-shall stand for trial immediately after filing the transcript and notice of appeal. See section 1962, Burns' Ann. St. 1901; section 332, Acts 1905, p. 657. It will be observed that at the head of the notices in question the cause is entitled, and the day upon which the judgment in the cause entitled was rendered by the Floyd circuit court is stated. It is true that each notice states that “George B. McIntyre, Prosecuting Attorney of the 52nd Judicial Circuit,” he being the proper prosecuting attorney, has appealed, instead of stating in hæc verba that the state of Indiana or the appellant has or had appealed. While the notices in this respect were not a literal compliance with the statute, still they were certainly sufficient to subserve the purpose thereof by warning or notifying both the clerk and appellee that the state, through its proper official, had appealed from the judgment which was rendered in the cause in question. This is the only reasonable interpretation that can be placed upon or accorded to the notices in controversy. Both appellee and the clerk must have known, or at least they must be presumed to have known, that under the statue the state was the only party that could prosecute an appeal from the judgment to the Supreme Court and that, under the circumstances, what was meant and intended by the statement that the prosecuting attorney appealed was that the appeal was to be taken by that official in the name of and on behalf of the state of Indiana, of which he was the duly-constituted representative.

The insistence of appellee's counsel that the notices of appeal must be filed with the clerk of the court in which the judgment was rendered, and embraced in the transcript as a part of the record of the proceedings in the lower court, is not tenable. An appeal in a criminal case is not required to be taken in term time, and giving the required notices cannot be said to be a necessary proceeding in the lower court to be shown by its record. They are not required to be filed with the clerk of that court, but, together with the proof of service, are to be filed with the clerk of the court to which the appeal is taken, and they properly become a part of the record of the case in the higher court. It will be noted that section 1962, Burns' Ann. St. 1901, and section 332, Acts 1905, p. 657, each provide that the appeal shall stand for trial after filing the transcript and the notices of the appeal. This provision clearly contemplates and requires that the notices are to be filed with the clerk of the appellate tribunal. In Beggs v. State, 122 Ind. 54, 23 N. E. 693, this court held that giving the notice of appeal after the day on which the transcript was filed, but within the time allowed for taking the appeal, while not a literal compliance with the statute, was, nevertheless, a substantial conformance thereto. We conclude that the appeal notices herein are substantially sufficient.

The assignment of errors is signed by the proper prosecuting attorney. It is insisted, however, by appellee that this official was not, under the law, authorized to subscribe the assignment. It is argued that his powers are confined to the circuit court or courts of his judicial circuit, and that the Attorney General is the only officer who is empowered to subscribe the assignment of errors in a cause in which the state of Indiana has appealed to the Supreme or Appellate Court. The reason...