Sutherlin v. The State

• Decision Date: 30 March 1898
• Docket Number: 18,497
• Citation: 49 N.E. 947,150 Ind. 154
• Parties: Sutherlin v. The State
• Court: Indiana Supreme Court

49 N.E. 947

150 Ind. 154

Sutherlin v. The State

No. 18,497

Supreme Court of Indiana

March 30, 1898

From the Starke Circuit Court.

Affirmed.

Burson & Burson and A. L. Courtwright, for appellant.

W. A Ketcham, Attorney-General, Frank J. Vurpillat, Merrill Moores, A. E. Dickey and W. M. Aydelotte, for State.

OPINION

Howard, C. J.

The appellant and his brother, Bert Sutherlin, were charged by affidavit and information with having committed rape upon the prosecuting witness, Mary Freet. The appellant was found guilty as charged, and the jury further found that he was, at the date of the verdict, over sixteen and less than thirty years of age. Thereupon he was fined and disfranchised, and was sentenced to the reformatory "for a term not less than one year and not more than twenty-one years."

The case was set down for trial on the last day of the October term, 1897, of the Starke Circuit Court, and was upon that day submitted to the jury. A part of the evidence having been heard, the following order of court was made: "This trial having been begun and [being] now in progress, and the expiration of the time fixed by law for the continuance of the present term of this court having expired, and the trial of this cause not being finished, the present term of this court be and the same is hereby prolonged and extended to transact and enforce all matters which shall be necessary for the determination of this cause; and the present term of this court be and the same is hereby not deemed to be ended until this cause shall be fully disposed of by the court; and the further hearing of this cause is now fixed and set down for next Thursday the 11th day of November, 1897." To the order of continuance so made the appellant at the time excepted.

The able and accomplished counsel for appellant thus briefly and clearly states the question for decision under the ruling complained of: "This court judicially knows that the term of the Starke Circuit Court ended by limitation on Saturday the 6th day of November, 1897, and that the legal term of the Pulaski Circuit Court commenced on Monday the 8th day of November, 1897; and the court also judicially knows that the counties of Starke and Pulaski constitute one judicial circuit, and that the several terms of the courts in these counties are presided over by the same judge. The trial court, in the case at bar, undertook to proceed under the provisions of section 1442, Burns' R. S. 1894 (1379, R S. 1881), which provides that should a term end during the trial of a cause, the court may continue the term and hear the cause until finished. It was held in Wayne Pike Co. v. Hammons, 129 Ind. 368, 27 N.E. 487, that the adjournment of the trial of a cause which is in progress the last day of the term to a subsequent day when the trial is again resumed is not an adjourned term but a continuation of the existing term. And but for the fact that the Pulaski Circuit Court was regularly in session, or could have been in session, the action of the court, in continuing the trial over and beyond the term, could not be questioned, as has been decided in Walker v State, 102 Ind. 502, 1 N.E. 856; but the day to which the cause was adjourned was a day when the circuit court of Pulaski county was, or could have been, legally in session, and our contention is, that as this was an attempt to continue the term of the Starke Circuit Court to a time when, under the law, it could not legally be in session, the court erred."

The clear statement thus made by counsel is, as we think, a sufficient refutation of his ingenious contention. The facts of the case, taken in connection with the statutes and decisions cited, show that the trial took place during a legally continued term of the Starke Circuit Court. Hence even if, in so continuing and presiding at the Starke term of court, the judge should have neglected his duties in relation to the Pulaski Circuit Court, it would not follow that the trial had at the legally extended Starke term of court was in any respect erroneous. ...