| Ind. | Nov 15, 1864
On the application of Huber, a writ of. habeas corpus was issued by the clerk of this court on the order of Chief-Justice Ray, directed to the defendant Robinson, sheriff of Marion county, commanding him to have the body of Huber, etc., before the judge aforesaid, at, etc., on, etc., to do and receive what shall be ordered, etc. To this writ the defendant makes the following return:
“ I hereby produce said Jacob Huber, in obedience to the order of this writ of habeas corpus herein. I hold said Huber under the authority of an order from Hon. Solomon Blair, judge of the Court of Common Pleas of this district, a copy of which order is filed herewith, and which order was made upon the conviction of said Huber, in the Court of Common Pleas of Hendricks county, upon an information filed in said court by the district attorney thereof, at the January term, 1865; upon which' conviction said Huber was duly sentenced to pay to the state of Indiana the sum of $200, and costs of the suit, and to be
The copy of the order of Judge Blair referred to is as follows:
“State of Indiana, Hendricks county, in the Court of Common Pleas, January term, A. D. 1865; Wednesday, January 25,1865. State of Indiana v. Jacob Huber. Information for keeping disorderly house. Comes Iklmund H. Straughan, sheriff of Hendricks county, and on his application, it is ordered that the said Jacob Huber he committed to the Marion county jail, the jail of this (Hendricks) county, being insufficient to keep prisoners.
“ (Signed,) Solomon Blair,
(£ Judge Court of Com. Pleas? 12ih DistJ
To this return, the plaintiff" Huber demurs.
The jurisdiction of the Court of Common Pleas in this state, in criminal prosecutions, is only co-extensive with the limits of the county.
This court, in the case of Sherry v. Winton, 1 Ind. 96" court="Ind." date_filed="1848-06-02" href="https://app.midpage.ai/document/sherry-v-winton-7031531?utm_source=webapp" opinion_id="7031531">1 Ind. 96, Judge Blackford delivering the opinion, said: “A Circuit Court is a county court only, whose jurisdiction is liihited. generally by the bounds of the county. It can 'isspe.Mo process whatever, mesne or final, to any other c|>untyr unless by some special statutory provision.” \ pp
The only statute under which it is claimed that Intbeti. is held by the sheriff of Marion county, on a conviction in Hendricks county, for keeping a disorderly house, is as follows: “When there is no sufficient prison in any county wherein any criminal offense shall have been committed, any judge of the Circuit or Common Pleas Court of such county, upon application of the sheriff, may order any person charged with a criminal offense, and ordered to be committed to prison, to be sent to the jail of the county nearest having a sufficient jail; and the sheriff of such nearest county shall, on exhibit of such judge’s order, receive and keep in custody in the jail of his county the prisoner ordered to be committed as aforesaid, at the
Looking at the precise words used, and construing them in their ordinary sense, the plain meaning of this statute, taken together, is that any one charged with a criminal offense, and before conviction, may, on the order of the judge, in the case contemplated by the section, be removed to the jail of a county other than that in which he stands charged. And, under the rule of law on this subject, it is the duty of this court, to give this construction to this statute, unless it would lead "to an absurdity or manifest injustice. (Parke, B. in Perry v. Skinner, 2 M. & W. 476.) '"We do not think this a case requiring judicial interpretation, changing the plain and obvious meaning of the words of the act.
It is the duty of each county in this state to provide a common jail. It may so happen, by accident or otherwise, that for a limited period some of the counties may not have such jail. In such case it would be very proper that persons charged, with crime should be safely held for trial; otherwise the greatest offenders might escape. But where imprisonment in the county jail is the punishment for a crime of which the person has been convicted, it seems to us not the policy of the law to increase that punishment by removing the criminal to a neighboring county, away from home and friends. Such a course results in an inequality in the punishment, of offenders; and in the language of Blackford, J., in the case of Sherry v. Winton, supra, “ a person is not to be shut up within the walls of a prison, but in cases where the law plainly authorizes his imprisonment.”
The sheriff of Marion county is not an officer of the Court of Common Pleas-'of Hendricks county, and he can not, of course, in the absence of any special statutory pro
It follows that the order of Judge Blair for the removal of Huber is void, and in contemplation of law, Huber is, or at least ought to be, in the custody of the sheriff of Hendricks county; and, under the provisions of sections 728 and 734 of the code, (2 G-. & H. 319-320,) it should be ordered that said Jacob Huber be discharged from the custody of the said defendant Robinson, the sheriff of Marion county, and remanded to the custody of the sheriff of Hendricks county. Which order was accordingly made by Chief-Justice Ray.