Opinion
No. S-57.
Filed April 29, 1932.
BAIL — Pending Appeal — Application to Trial Court — Precludes Application to Supreme Court. — One who, after conviction, files in the trial court an application to be released pending appeal, cannot thereafter make a similar application, based on the same facts, to the Supreme Court, as the two courts have concurrent jurisdiction of that matter, and the doctrine of election applies.
Application for bail pending appeal.
Bruce Branham was convicted of transporting intoxicating liquor in an automobile (a felony), and he appealed. Pending the appeal, he applied to the trial court to be let to bail, his application being refused. Subsequently, he applied to the Supreme Court to be let to bail, and this application was denied.
Charles L. Garrison, for applicant for bail.
James M. Ogden, Attorney-General, and V. Ed Funk, Deputy Attorney-General, for the State.
Applicant, Bruce Branham, was convicted of the crime of transporting liquor in an automobile, as defined by § 2720 Burns 1926, and was sentenced to imprisonment for a period of one to two years on March 14, 1932.
Applicant filed with the trial court his application for bail pending appeal, which was denied. The application is based upon § 1 of the Acts 1929 (Acts 1929 p. 424), which provides that such petition shall be filed in the court to which such appeal is to be or has been taken or in which the judgment of conviction has been entered. The State contends that applicant, having filed his application in the Grant Superior Court, cannot now, after a denial of bail in the lower court, file in this court an application in the same cause of action for bail pending appeal.
The application for bail should be denied for the reason that the two courts have concurrent jurisdiction over the subject-matter of the action, and the doctrine of election applies. Applicant, having elected to file his application in the lower court, cannot thereafter make a similar application, based upon the same facts, in the Supreme Court. Eacret v. State (1930), 90 Ind. App. 679, 169 N.E. 690; Boos v. State (1911), 175 Ind. 389, 94 N.E. 401.
It is ordered that the application be denied.