Turner v. O'Neal, 29529
| Decision Date | 30 September 1957 |
| Docket Number | No. 29529,29529 |
| Citation | 237 Ind. 258,145 N.E.2d 1 |
| Parties | Olin Lee TURNER, Appellant, v. Robert O'NEAL, as Sheriff of Marion County, et al., Appellees. |
| Court | Indiana Supreme Court |
William C. Erbecker and John O. Lewis, Indianapolis, for appellant.
Appellee O'Neal, Sheriff of Marion County, prevailed in a habeas corpus proceeding instituted by the appellant Turner. The appellant was held upon the request of the State of South Carolina as an alleged fugutive who had escaped from the South Carolina Penitentiary while serving a life sentence for murder of his uncle. A return was made by the Sheriff in the court below, followed by a hearing and trial, which terminated in a denial of the writ.
The purpose of a writ in such a case as this is to bring the person who is in custody before a court for inquiry as to the legality of the restraint. Bryarly v. Howard, 1947, 225 Ind. 183, 73 N.E.2d 678; Finkenbiner v. Dowd, 1952, 231 Ind. 416, 108 N.E.2d 261.
There are a number of reasons why the appellant cannot prevail in this appeal. We find upon examination of the record that no notice of the filing of appellant's brief was ever served upon the appellee Sheriff of Marion County, or his attorney. A notice and copy of the brief was served upon the Attorney General of the State of Indiana. The State is not a party to this action, and, so far as we can find, the Actorney General has no obligation to appear for the Sheriff of Marion County; nor is he entitled to do so. Service upon the Attorney General is not service upon the Sheriff of Marion County. State v. Nagel, 1928, 200 Ind. 270, 163 N.E. 97; Baird v. Nagel, 1924, 194 Ind. 87, N.E. 9, 30 A.L.R. 1319.
We are not, therefore, favored by any brief from the appellee Sheriff. However, regardless of the failure of appellant in the respect just mentioned, an examination of his brief reveals inadequacies, which prevents the granting of the relief asked in this court. Bronnenberg v. Van Den Bosch, 1956, 235 Ind. 706, 135 N.E.2d 519.
The assignment of errors states first, that the court erred in denying the writ; secondly, the trial court erred in overruling the petitioner's exceptions to the return made to the writ. The appellant, in his argument portion of the brief, is more specific, and contends that the arrest of the petitioner was initially illegal, because he was arrested on information received by a police officer by telegram from officials in the State of South Carolina and also upon a warrant from a court of that State, which was two years old. Petitioner further contends that the requisition from the demanding State of South Carolina was defective and that the extradition warrant issued by the Governor of Indiana and served on the petitioner just prior to the trial, was legally insufficient on the ground that the Governor did not hold a hearing thereon at which the petitioner was present.
These questions were raised by objections to the various exhibits as they were introduced in evidence. No motion for new trial was filed, and the specific objections thus are not properly in any assignment of error. Appellant states that 'This being an appeal from an interlocutory order no written motion for new trial was necessary * * *.' No authority is cited for this statement. The appeal in this case is from a final judgment of a court and is not from an interlocutory order. It has long been the recognized practice that errors occurring at and during the trial on a petition for a writ of habeas corpus must be raised by a motion for a new trial. Gluff v. Rouls, 1950, 228 Ind. 186, 91 N.E.2d 176; Darst v. Forney, 1928, 199 Ind. 625, 159 N.E. 689; Thornton v. Devaney, 1944, 223 Ind. 47, 57 N.E.2d 579.
There is also a failure to set out at any place in the brief the exhibits introduced by the appellee Sheriff showing his authority for...
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Hale v. State
...for inquiry into the cause of restraint.” O'Leary v. Smith, 219 Ind. 111, 113, 37 N.E.2d 60, 60 (1941); see also Turner v. O'Neal, 237 Ind. 258, 259–60, 145 N.E.2d 1, 2 (1957); Bryarly v. Howard, 225 Ind. 183, 186, 73 N.E.2d 678, 679 (1947). “One is entitled to habeas corpus only if he is e......
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...Sumner v. Lovellette (1970), 253 Ind. 675, 256 N.E.2d 681; Notter v. Beasley (1960), 240 Ind. 631, 166 N.E.2d 643; Turner v. O'Neill (1957), 237 Ind. 258, 145 N.E.2d 1. IC 1971, 35--4--3--21 (Burns' Ind.Stat.Ann. § 9--438 (1956 Repl.)), The guilt or innocence of the accused as to the crime ......
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Von Behren v. Von Behren, 868S135
...error in a habeas corpus proceeding where a trial has in fact been conducted. Houtchens v. Lane, supra. Turner v. O'Neal, Sheriff, etc. et al. (1957), 237 Ind. 258, 145 N.E.2d 1. We next address ourselves to the question of whether the trial court's ruling on the motion to strike the appell......
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