*1 sibility, guess, conjecture. The trial court could reasonably evidence, have inferred from the both direct circumstantial, appellant broke and building, entered but broke and entered with felony charged. intent commit There is sub- probative prove stantial evidence of value to each mate- rial element of the crime. considering appellant,
After the contentions of we find error. no
Judgment affirmed.
Note.—Reported in 103 N. E.
Bozovichar State of Indiana 28,851. February [No. Filed 1952.] *3 Haute, Leer, Hunter J. Von of Terre and Homer D. Ingram, Newport, appellant. of for McManamon, Attorney General;
J. Emmett William Ready O’Connor, Deputy T. McClain and John At- torneys General, appellee. for The appellant J. Bozovichar was indicted
Draper, in the Circuit for in Vermillion Court murder the degree. court, later in second He filed motion said time, bail, pursuant in term to be admitted to to Burns’ Replacement, In said motion he asserts §9-1035.1 guilt alleged proof his not that the of of said crime is murder, any person is the court in “When indicted upon motion, or, vacation, pending, the indictment which is court, upon application by judge the circuit criminal the of or bail, corpus, when of admit the defendant to writ habeas upon appears to examination that is entitled to be let bail. he 584.)” (Acts 1905, §154, p. ch. guilt strong. of presumption nor the such Evi- evident the of the court dence was heard right attempts to bail. He below he was denied appeal. says appeal- the issue is not
At the outset State able, support it cites in that assertion of Replacement, Article Burns’ 1946 §2-3218.2 provides State Constitution of our §17 follows: treason, “Offenses, murder or shall other than or sureties. Murder trea- bailable sufficient evident, bailable, proof shall not be when son or presumption strong.” proof
Thus, of murder is a bailable offense when strong. evident,, guilt guilt presumption or the of prevents right give conviction bail before adjudication prior punishment infliction of guilt permits unhampered prepara of and a tion defense. is a traditional of a preserved, right. cherished Unless innocence, presumption after cen of secured meaning. Boyle struggle, will lose its Stack turies give (1951), 96 denial L. Ed. 7. The Supreme be taken “An to the Court court, probate any superior circuit, or order of thereof, following judge cases: money compel payment or to the execution For the First. assignment delivery writing, any instrument of things securities, any debt, documents or action. evidences *4 delivery possession property real of of Second. For the sale thereof. or dissolving, refusing grant, Granting, or over- Third. dissolve, injunctions, temporary either in term
ruling motions to in vacation. corpus upon judgments of habeas writs Fourth. Orders §1, p. 741.)” (Acts ch. in term or vacation. made guilt proof pre- bail where the of is evident or the not. guilt sumption strong deprivation. would abe liberty process law, without due in violation of the Constitution, prompt which would call for corrective parte Ex action. McDaniel Fla. 97 So. position The State takes “since this is obvi- ously judgment, nature, not a final its it must interlocutory order,” construed as and “Since subject particular appeal matter of this does not correspond any above, with cases enumerated appealable §2-3218, Burns’ there is no issue before the court.” problem presented seems to divide itself into parts. First, judgment
two is the nature of the under appealable; consideration such that it say, degree finality does have that which is judgment? necessary appealable Second, to an if it is appealable, in its nature is an authorized under our law? judg
The rule that an lies from a final applies in ment criminal cases. Ewbank’s Ind. Crim.
Law, Ed., judgment 2nd 584. “A rights parties is one which determines the suit, it, or a distinct and branch definite question no further or direction for and reserves future Light (Our emphasis.) Electric determination.” Home Paper Tissue and Power Co. v. Globe Co. 174, 175, People’s E. Ebenezer Old App.
Home v. Bernhard necessarily last “A final N. E. 129. any that is A conclusive of one in an action. question.” is final as to that Sharon question in a case 456,. 185, 196, Pac. (1885), 67 Cal. v. Sharon Bernhard, supra. People’s Home v. For Old Ebenezer *5 example, denying petition to an order be made a- judgment” party “final to a cause is a from which an taken, appeal may be Jesswein v. LaSalle State Bank App. 198 N. E. and cited. cases distinct, There are cases wherein issue entire and formed; complete itself be an issue divisible within others, from all the decision of which does and distinct completely order not the main action. affect Where puts particular fully finally issue and an end to the and it, rights parties may be of the as to then it settles non-appeal- and not as a as a final considered Procedure, Appellate order. able Elliot’s involving right give issue to bail Such right give in such cases cases. The to bail murder presumption proof is not evident or when guaranteed right strong is a fundamental raised the motion The issue our Constitution. entirely independent of the issues to admit to bail is It cannot tried itself. be to tried on the indictment be tried It must be before. the case is tried. when right to be of the accused final determination speedy If the effective. be to bail must admitted trial and sentence before not reviewable decision is reviewable, see O’Brien never the indictment under if the decision and 25 F. States United unjust, not re and court erroneous of the trial of a constitutional viewable, in the denial it results then un forever must remain right which accused temporary. is not the issue The decision vindicated. for all once and It determines is terminal. concerning a distinct in and right's the accused suit, a decision which is of the branch definite the issue judgment of a final which is temporary, but accused bail. When his branch definite determined, a distinct has been of the case has Nothing been pertaining decided. phase of the case is left for future determination. Boyle, supra,
In Stack petitioners moved to reduce the amount required of bail of them on the
ground that the amount of bail as fixed was Eighth excessive under the Amendment. It was *6 held proper procedure there the for chal lenging unlawfully bail as fixed was motion for bail, reduction and it was further held that an denying appealable order such motion was as a “final USCA, decision” under Title 28 If an order §1291.3 fixing high unreasonably bail in an amount ais final appeal prosecuted, decision from which it be right denying would seem to us that an order the to any appealable amount must likewise be so finality might far as is concerned. An accused some furnishing, though how succeed in bail even the amount high, unreasonably obviously as fixed were but he could right not bail if the furnish refused to do so. con We clude that the of the decision trial court on the issue judgment, appealable of bail is a final as such. Having judgment reached the conclusion that the final, appealable judgment, under is a consideration we consider it whether our law to be authorizes stated, was held in Stack appealed. As above Boyle, supra, the matter of the reason v. appeal- the ableness of bail fixed trial court was giving right appeal “from able under an act courts.” statute all final decisions of district Our 3 jurisdiction appeals appeals shall have “The courts States, courts of the United from all decisions the district Territory Alaska, United States District Court for the Zone, of the Canal District Court the District Islands, except Virgin where a direct review of the District Court 1948, 25, 646, Supreme c. Stat. Court. June 62 had 929.” right
extends to the appeal defendant any to “from judgment-in against a criminal (emphasis action him.” supplied) Replacement, Burns’ 1942 We can §9-2801.4 little, any, right see if difference between the appeal right from “all final appeal decisions” and the “any judgment in a criminal action.” We conclude that appealable under consideration is under Replacement, Burns’ §9-2301. opinion are further
We of the that the was appealable independently of statute. In this state the express statutory provision
lack of an authoriz ing is not fatal to appeal. to this court does not exist only by grace legislative branch. does depend upon Telephone statute. Warren Indiana v. Co. (1940), 399; Ind. N. E. 2d State ex rel. Judge Hilgemann, White 218 Ind. Indianapolis E. 2d Lundquist Ins. Co. Life E. 53 N. State rel. ex Gannon v. Lake Circuit Court *7 E. 2d ex rel. Emmert State Hamilton v. (1945), 418, 61 N.
Circuit Court 223 Ind. E. Joseph Seagram Com’rs., & E. Sons Board etc. of (1943), 220 Ind. N. E. 2d 491. appellant
The court below denies the which, appropriate circumstances, to in relief he would legis our The be entitled under Constitution. attempted deprive lature has not this court appellate jurisdiction of its constitutional successfully judgment, could it do such nor review Appellate Supreme “An to the Court to the right, may by Court, be taken the defendant as a matter against any judgment him, in manner in a criminal action the any and, upon appeal, prescribed herein; the in the cases progress in made the court or intermediate order decision the §324, p. 584.)” (Acts 1905, ch. reviewed. of the case
so,
guarantees
for the Constitution
Indiana
the abso
by
lute
to a review
this court. Warren v. Indiana
Telephone Co., supra;
Hilgemann,
State
rel.
ex White v.
Judge, supra; Montgomery
State
854; City
56 N. E. 2d
South Bend v. Whitcomb
& Keller
The in that case facts differ so from those controlling bar that in the case at we do not consider it helpful present even situation. We good purpose think no would be served recit ing appellant the evidence. Inasmuch yet proper on the indictment more to be tried seems may say, however, that not to do so. We deceased the result knife wounds inflicted died as shortly parties engaged defendant after the had been fight. against presumption in a fist in a murder case. The to be admitted burden applicant proof to show that the is not evident is on the strong. guilt presumption of or the Ewbank’s Ind. Law, Ed., 2nd 157. We have examined Crim. great ably care and it the evidence with has been argued jury the full court. A indeed take urged by appellant, of the case now but we view disturbing finding judg justified not feel do refusing appellant to admit the the trial court ment of to bail.
Judgment affirmed. J., opinion.
Gilkison, Jasper, and concur with J.C. CONCURRING OPINION opinion in the J. I concur result of the C. Gilkison, court, affirming denying the lower the action of But, defendant, I think the motion Bozovichar. appeal attorney-general to dismiss the should Law, Indiana been Ewbank’s Criminal have sustained. by majority opinion, Ed., cited 2nd saying: quite only an lies from a final “The rule that cases; merely and judgment applies in criminal indictment, refusing quashing quash a an indictment, or sus- part only of the counts special plea taining of former ad- demurrer to a a support judgment a as will judication, is not such go appeal; the court must make farther prosecution. pending disposes ruling which italics). (My . . .” treatise did Mr. Ewbank in the excellent Nowhere in the of a criminal make statement determines the one which “A final action and n suit, rights or a distinct parties definite question direc- it, no further and reserves branch of quotation is from This for future determination.” tion proceedings may proceedings. Civil appeals in civil properly But when one of branches. a number have is— charged before the court crime the issue with no guilt of the defendant—and innocence except the case judgment can had in the appealable be determining has no question. “branches.” appeal may taken, judgment from which an
A final has alike to civil and criminal cases been applicable courts, many other the text defined this books as follows:
368 disposes which “A one litigation subject parties matter of the as to the pending so far as the court in which the action is dispose it, puts power to has and an end to the particular parties case as to all of such all and Glover, of such issues. Kalleres et al. v. Receiver 478, 679, (1935), 472, 208 Ind. 196 N. E. and cases cited; Haute, etc., Indianapolis, etc., Terre R. Co. v. 193, 197, (1906), 661; Co. Ind. N. E. North 167 78 ern, etc., Peoples The Cable Co. v. Mut. Tel. Co. 267, (1916), 270, 184 Ind. N. E. 4 111 and cases cited; Kunkel, Ind. Moneyhon (1938), 214 Warden v. 606, 609, 82; 17 N. E. 2d McNelis v. Wheeler 148, 152, (1947), 339; 225 Ind. E. 2d The 73 N. State, Krug (1883), ex rel. Braden et al. v. 94 Ind. 366, 369, supra cited; and cases II Re Watson’s vision, Procedure, Practice, Practice, Appellate Works’ §2243; Elliott’s 91; Gavit, Pleading 2 Indiana §§90, pp. 2572, §523, Todd 2573.” v. State 664, 690, 691, (1951), 229 Ind. 101 E. 2d 45. Derry (1908), 18, also State v. Ind. See 85 N. E. 765; Thomas, Chicago Administrator v. The 462, Railway Company (1894), 463,
Erie 139 Ind. Indianapolis 44; 39 N. E. Ind. Nat. Bk. v. Dan ner, (1930), 709, 711, 327; Rec. 204 Ind. 170 N. E. Telegraph Company Locke, The Western Union v. (1886), 9, 11, 579; Administrator 107 Ind. 7 N. E. 204, (1907), Mak-Saw-Ba Club v. 207, 209, 169 Ind. Coffin 461; Wagener (1907), 82 N. E. Barnes v. 511, 514, 1037; 169 Ind. 82 N. E. Ewbank’s Manual Practice, Ed., p. S., Appeal 23. 4 §20, C. J. of Error, p. §94, 184. interlocutory An order has been well defined this court and the text writers thus: court, progress “An order of the made in the cause, something requiring to be done or ob- served, determining controversy, but not is an Derry order.” v. State 18, 27, supra; Crane, et al. Ind. v. Guardian Pfeifer (1883), 89 Ind. Nat. Bk. Indian- Ind. apolis Danner, (1930), 204 Ind. Rec. cited, supra; The Tele- and cases Union Western graph Locke, Company Administrator 9, 11, supra; Mak-Saw-Ba Club v. Coffin 204, 209, supra; Appellate Elliott Procedure, pp. §§83, last sentence §99 p. 80; Practice, Ewbank’s Manual order from attempted which this to be taken Appellant being charged came about as follows: by indictment in the court below with murder degree, second filed his verified motion to be let to bail Replacement. under Burns’ §9-1035, He did not *10 present way by corpus1 the matter of habeas as he had right (and do a from an adverse decision in which appeal by he have would had virtue of the statute, Fourth, §2-3218, Cl. Burns’ Replacement). 1946 hearing motion, After evidence on the the court made following ruling the and order: having “The court heard evidence on defendant’s
petition having to be admitted to bail and heard argument and being duly of counsel and considered advised, petition now overrules said and de- custody fendant is ordered in retained the of the County Sheriff of until Vermillion the further the order of court.” No other order and no has been made or rendered in the case. It be noted will that the defendant is ordered held “until the further order of the attempted The appealed court.” matter to be from has finally by not been determined the trial court. is It still in fieri.
The order has none judg- of the elements of a final dispose subject ment. It does not of matter litigation the the far as court in which the action so pending dispose power is has of it. It does put parties—the case to the an end state put pend- an defendant—nor does end to all
1 3-1902, Replacement. Burns’ 1946 Section contrary order in
ing in the case. On issues interlocutory order. of an question has all the elements progress made in an order of court something requiring detention cause, to be done—the nothing whatever There the defendant. parties. controversy determining between the order hereafter the court’s docket be on case remains The interlocutory matter is still tried, particular and the trial court. fieri statutory. Civil In Indiana the Replace Burns’ appeals §2-3201, are covered appeals Burns’ §9-2301, ment and Criminal a final is taken from Replacement. When case, “any court decision of the in a criminal progress case of a made in the intermediate order separate appeal But no may be reviewed.” during the interlocutory made order taken provided except are such as progress the case Replace Burns’ §2-3218, in the four clauses supra; 18, 26, Derry Ind. ment. State Crane, (1883), 89 Ind. et al. Guardian Pfeiffer 487, supra; Club v. Mak-Saw-Ba Coffin from which 207, supra. order *11 fall within attempted to be taken does not appeal this is Chapman (1912), Nisius v. these four clauses. either of 785; cited, Natcher 494, 496, 99 N. E. and cases Ind. 178 86; v. E. Barnes 153 Ind. 55 Natcher 511, 514, supra. Wagener (1907), Ind. attempted to taken an inter- appeal was
The bond, recognizance locutory appeal appeal. An not a bail, was filed to of Five Hundred Dollars in the sum the trial court on approval October having defendant, appealed from that “said It recites judgment Court of of the said Circuit Vermillion . the said County denying in said cause . . and having an that said . . entered order . Circuit Court perfect appeal shall defendant said thirty his within (30) days from the judgment.” date said The assignment transcript and of error were filed this in 8, 1951, agreeable court November with §2-3219, Burns’ provides Replacement which the time within appeals which from interlocutory orders be taken. appeal by statute, An not authorized does not invest Supreme jurisdiction. Court with This rule of law is well stated as follows: appeal judgment “. . . Where an is taken from a statute, appellate decree not authorized or court has jurisdiction. appellate no An court can- jurisdiction acquire requisite other than as appeal appeal on nonappeal- dismiss the an from a order, pass able case its by and it cannot on the a merits of falling appellate jurisdiction within its unless jurisdiction prescribed is invoked the manner Appeal Error, ...” statute. J. S. C. p. 116; p. 936; p. Mak-Saw-Ba §39 §92 §461 supra. 204, 207, Club v. Coffin respect “splinter,”
The “piecemeal” law with “fragmentary” appeals has been well stated thus: “Although there appeal be an from one appeal without an from the other others where there are two or more distinct and judgments action, held, several it is often general judg- because ments or orders can be rule that appealed (see from infra party parts a §92) cannot divide case into up by fragments, carry Ap- J. ...” S. C. peal Error, p. pp. 180, 181, §38 §92 Club Mak-Saw-Ba §93 Coffin 204, 208, supra. Appellate duty Supreme of an when an Court attempted from be taken an order or not final or authorized, no order from which has been well stated as follows: *12 ap- on record of final or “The existence judgment, order or decree is
pealable jurisdictional, and, thereof, ap- in the absence entertained even consent peal cannot be Although parties. objection no waiver hearing and no motion be made made at the will, motion, dismiss, dis- the court on its own Appeal Error, appeal.” J. miss 4 C. S. §92 p. 182. should be
The state’s motion to dismiss sustained. J.,
Jasper, concurs. Note.—Reported N. E. 2d 680. in 108 Employees Bartenders, Union & Restaurant Hotel L. F. A. Bend, et al. v. Local South Restaurants, Inc.
Clark 18,213. [Appellate Transfer denied No. Court February 18, 1952.] appellants. Bend, for Smith, B. of South Edward Searer, Levy of South May, Beamer, & Crumpaeker, appellee. Bend,