Wiggins v. State

• Decision Date: 11 October 1923
• Docket Number: 24,263,24,264
• Parties: Wiggins v. State of Indiana. Neal v. State of Indiana
• Court: Indiana Supreme Court

141 N.E. 56

194 Ind. 118

Wiggins v. State of Indiana.

Neal v. State of Indiana

Nos. 24,263, 24,264

Supreme Court of Indiana

October 11, 1923

Rehearing Denied January 10, 1924.

From Putnam Circuit Court; James P. Hughes, Judge.

Prosecution by the State of Indiana against Charles F. Wiggins and Herschel Neal. From a judgment of conviction, the defendants appeal.

Affirmed.

James & Allee and Robbins, Weyl & Jewett, for appellants.

U. S Lesh, Attorney-General, and Mrs. Edward Franklin White Deputy Attorney-General, for the State.

Myers, J. Townsend, J., absent.

OPINION

For the purpose of this opinion only, these cases have been consolidated.

Myers J.

Appellants were separately charged by affidavit, tried and convicted in the court below of escaping from the State Farm, in violation of § 1 of Acts 1915 p. 338, § 2406a Burns' Supp. 1921. The separate motion of each for a new trial was overruled and judgment in accordance with the finding in each case. These cases were tried the same day, in the same court, before the same judge, and submitted on the same evidence.

Each of these appellants separately assigned error on the overruling of their separate motions for a new trial. Their only insistence here is that the evidence is insufficient to support the decision of the trial court. They each defended on the ground that they had permission to leave the farm for a day from an officer of the institution who, they in good faith believed, had authority to grant such permission.

Appellants and one other person, a prisoner on the farm. testified to practically the same facts pertaining to conversations with one Curry, a farm officer, assistant captain, relative to permission for them to spend Sunday, September 17, 1922, off of the farm. Curry testified that he gave no such permission to either of the men. These appellants testified that Curry told them they must be careful and not let other prisoners and officers see them leave, and not to get caught. They left the farm early Sunday morning, and walked to Limedale where they met Wiggins' wife in an automobile in which they drove to Greencastle and spent the forenoon at the home of Neal's father, and where they also had dinner, with the intention of returning to the farm by four o'clock that afternoon. They had just finished dinner when they looked out and discovered Captain Howard, Superintendent of the farm, Len Fry, a farm guard, and other persons surrounding the house. They were arrested by Superintendent Howard and other officers, taken to the farm, then returned to Greencastle, placed in jail and tried the next day.

The evidence shows that Neal's term of imprisonment had three days only to run and that he had arranged to pay the fine and costs adjudged against him. We are not advised as to the unserved time of imprisonment of appellant Wiggins, but it does appear that "for some time prior to" September 17, he had been an inmate on the farm and had earned the position of "a trusty", and on Saturday night before the Sunday in question, he had acted as dormitory guard of a certain ward. This evidence is uncontradicted. Hence, it seems strange that any one with any mind at all would leave the farm without permission and thus subject himself to a charge for so doing carrying a penalty of not less than two years and not more than five years in the State Prison. Both appellants testified that they had permission from Curry to leave the farm for the day and that they had no intention of escaping from the institution, and while their actions outside of the institution strongly corroborated their testimony, yet the question of their leaving the farm without permission so to do was one of fact and within the...