Vuckowich v. State

• Decision Date: 18 June 1929
• Docket Number: 25,041
• Parties: Vuckowich v. State of Indiana
• Court: Indiana Supreme Court

166 N.E. 771

201 Ind. 194

Vuckowich v. State of Indiana

No. 25,041

Supreme Court of Indiana

June 18, 1929

1. JUDGMENT---Becomes Final at End of Term---Power of Court Thereafter---Cannot be Set Aside.---A judgment regularly entered becomes final at the end of the term. After that time, the court which entered it has no power to set it aside, except such as may be given by statute, unless some proceeding for that purpose has been commenced within the term and has been continued for hearing, or otherwise remains undisposed of. p. 198.

2. JUDGMENT---Power to Set Aside---After Expiration of Term.---An order of court setting aside a judgment after the expiration of the term at which it was entered and granting a new trial was void, the court being without jurisdiction to take any such action. p. 199.

3. APPEAL---Right to Appeal---Not Given by Constitution---Created by Statute.---The Constitution does not grant to any one the right of appeal to the Supreme or any other court. Such a right exists only by virtue of a statute, and an appeal can be taken only in the manner, upon the conditions, and for the reasons named in the statute. p 199.

4. CRIMINAL LAW---Right to New Trial or Appeal---Dependent Wholly on Statute---How Granted or Taken.---The right to a new trial or to appeal from a judgment of conviction depends on the provisions of the statutes authorizing a new trial or an appeal. A new trial can be granted or an appeal taken only in the manner, upon the conditions, and for the reasons named in the statute. p. 199.

5. CRIMINAL LAW---Setting Aside Judgment---Order after Term Void---Order Vacating Same---Harmless to Defendant.---An order vacating a previous order setting aside a judgment of conviction, the latter order having been made after the expiration of the term at which the judgment was rendered, did not harm the defendant, as he acquired no rights by virtue of the void order setting aside the judgment. p. 199.

6. APPEAL---Final Judgment---Order Setting Aside Previous Order.---An order of the court setting aside a previous order is not a final judgment from which an appeal can be taken. p 199.

From Lake Criminal Court; Martin J. Smith, Judge.

Tom Vuckowich was convicted of transporting intoxicating liquor in an automobile, and he appealed.

Appeal dismissed.

Paul P Glaser, for appellant.

Arthur L. Gilliom, Attorney-General, and George J. Muller, Deputy Attorney-General, for the State.

OPINION

Willoughby, J.

On August 16, 1924, in the July term of the Lake Criminal Court, an affidavit was filed charging the appellant with unlawfully and feloniously transporting intoxicating liquor in an automobile. On November 18, 1924, a motion to quash such affidavit was filed and overruled by the court. Issues were then joined on appellant's plea of not guilty. The case was tried by the court. The court heard the evidence and found appellant guilty as charged, and his age to be 33 years. The court rendered judgment on this finding on December 1, 1924. After judgment was rendered, on the same date, December 1, 1924, the appellant filed his motion for a new trial, which was overruled by the court. The appellant was granted an appeal to the Supreme Court and 90 days in which to file his bill of exceptions. And the appellant at the same time served notice of an appeal on the prosecuting attorney. On December 3, 1924, the appellant was admitted to bail and released from custody pending appeal.

There are two terms of court each year in the Criminal Court of Lake County. These terms commence on the first Mondays of January and July of each year, and each term continues for six months. On February 16, 1925, of the January term of said court, the following proceedings were had in said court as shown by the record thereof:

"State of Indiana v. Tom Vuckowich

(No. 4718.)

"Comes now the State of Indiana by its prosecuting attorney and comes also the defendant in his own proper person, in open court and asks leave to withdraw his appeal herein, which petition is by the court granted and said appeal is withdrawn, and the defendant's motion for a new trial is now reconsidered and said motion for a new trial is now by the court sustained and the defendant now also withdraws his plea of not guilty and for his plea herein says that he is guilty as charged; thereupon this cause is submitted to the court for trial, and the court having heard the evidence and being now fully advised in the premises finds: That the defendant is guilty as charged; that he should be fined in the sum of $ 100.00, and pay the costs of this prosecution and be imprisoned at the Indiana State Prison for a period of not less than one nor more than two years.

"It is therefore considered, adjudged and decreed by the court that the defendant, for the offense by him committed, to wit transporting liquor, do make his fine to the State of Indiana, in the sum of $ 100, and pay the costs of this prosecution and be imprisoned at the Indiana State Prison for a period of not less than one nor more than two years.

"And it appearing to the court that, on motion of the defendant and consent of the State, the court now suspends the prison sentence herein imposed upon the defendant so long as he shall behave well and on condition that the suspension of the sentence may be revoked at any time for cause, and that, upon payment of fine and costs herein, the defendant be released from custody and paroled.

"And afterwards, to wit, on the 20th day of April 1925, the same being the ninety-first judicial day of the January Term, 1925, of said court, the following further proceedings were had and entered of record in the above entitled cause, to wit:

"The court having had this cause under consideration as to the legal status of the proceedings had and the orders entered herein on the 16th day of February, 1925, and being now fully advised in the premises, finds that the entries, orders and proceedings had and done herein on said 16th day of February 1925, by the respective parties hereto and entered herein, were without jurisdiction of the court at said time for the reasons that on said date this cause was not in fieri in this court and that on said date the term of court at which...