The State v. Cooper

• Decision Date: 18 September 1885
• Docket Number: 12,466
• Citation: 2 N.E. 238,103 Ind. 75
• Parties: The State v. Cooper et al
• Court: Indiana Supreme Court

2 N.E. 238

103 Ind. 75

The State v. Cooper et al

No. 12,466

Supreme Court of Indiana

September 18, 1885

From the Sullivan Circuit Court.

Judgment is affirmed.

J. D Alexander, Prosecuting Attorney, J. C. Briggs and W. C Hultz, for the State.

J. T Hays, H. J. Hays, W. S. Maple, A. A. Holmes and S. C. Coulson, for appellees.

OPINION

Mitchell, C. J.

An information based upon the affidavit of Harry Blue, charging William Cooper and Perry Cooper with a conspiracy to commit a felony, was presented to the Sullivan Circuit Court at its June term, 1883. The defendants pleaded in abatement that no such person as Harry Blue, by whom the affidavit purported to be signed and sworn to, existed at the time it was made, but that the person who signed and swore to it was one Henry, alias Harry, Little. A demurrer was overruled to the plea, and the State refusing to reply or plead further, it was ordered by the court that the defendants be discharged from custody, and that "they go hence without day." Thereupon the State appealed to this court, and the order of the circuit court was reversed. State v. Cooper, 96 Ind. 331.

After the reversal the defendants were, upon the motion of the prosecuting attorney, arrested upon a bench-warrant, and required to enter into recognizance for their appearance from time to time until the case should be disposed of. The case was continued from one term to another upon the application of the State, until the 7th day of April, 1885, when the defendants filed a written motion, supported by affidavit, asking that they be discharged from custody. This motion was sustained by the court, and the ruling excepted to. Thereupon it was again ordered that the defendants be discharged. This order was excepted to, and the State again brings the record here on appeal.

The error assigned and insisted upon is, that "the court erred in discharging the defendants over the objection of the appellant."

Counsel for appellees contend that because the motion upon which the court ordered the discharge, and the affidavit supporting it, and the ruling of the court thereon, are not brought into the record by bill of exceptions or by order of the court, no question is presented for decision. The contention of appellant is that the error alleged is apparent upon the face of the record, and that no bill of exceptions was necessary. It is true that where all the essential facts necessary to show the ground upon which a ruling of the trial court was made appear upon the face of the record, no bill of exceptions is required to present such ruling for review upon appeal. Accordingly, in Doctor v. Hartman, 74 Ind. 221, it was held that the ruling of the court on a motion to dismiss a cause for want of jurisdiction, where the want of jurisdiction was apparent on the face of the record, was presented without a bill of exceptions. This rule can only be applied to cases where the error, if error occurred, is apparent upon looking at what properly belongs to the record. In speaking of matters which appear on the record, only such things are meant as pertain to the legal record. Scotten v. Divilbiss, 60 Ind. 37; Lippman v. City of South Bend, 84 Ind. 276; Hancock v. Fleming, 85 Ind. 571.

A motion by a defendant to be discharged from...