Dissenting Opinion
Achor, J.I do not concur in the construction placed upon §9-721, Burns’ 1956 Repl., by the majority opinion. The statute is comprised of three sentences, each of which deals with a distinct subject-matter. The first sentence concisely states:
“Any prisoner, against whom punishment is adjudged by a justice of the peace, mayor or judge of a city court, municipal court or magistrates court, may appeal to the criminal court, and, if there be none, then to the circuit court of the county, within ten [10] days after such judgment. ...”
It seems clear to me that this provision provides for appeal in ten days, whether appeal bond is filed or not. The second sentence provides:
“In case such prisoner, within such ten [10] days, enters into recognizance for his appearance at the current term of such court, if such court is in *85session, or at the next term of such court, if such court is in vacation, and causes to be filed in such court, within fifteen [15] days, all other papers, documents and transcripts necessary to complete his appeal, then such appeal shall stay all further proceedings on the judgment in the court below. 99
This provision authorizes additional time for causing the filing of transcript, etc., in event a recognizance bond is filed within the ten-day period. The above provisions comprised the total act as it was adopted in 1927. Neither provision of the statute purports to make the filing of a bond a condition precedent to appeal (as did the earlier statute of 1881).
In 1945 the Act was amended by the addition of the following sentence (Acts 1945, ch. 284, §1, p. 1081) :
“Provided, that such prisoner may remain in jail on his sentence instead of furnishing a recognizance and such appeal without recognizance shall not stay the execution of the court below.”
I do not believe this addition to the act in any way changed the ten-day time limitation for requesting an appeal as previously provided by the act. Rather, it is my opinion that the amendment was prompted by a consideration that any law which purported to grant the right of an appeal in criminal cases to only those persons who are able to post recognizance bond, would be unconstitutional. It is my opinion that the 1945 amendment was enacted to remove the cloud of constitutionality placed upon the act by the cases relied upon by the majority opinion and, further, to make the act conform to §9-2311, Burns’ 1955 Repl. (Acts 1905, ch. 169, §331, p. 584), which provides that an appeal to this court without bond will not stay exeeutioh of the penalty. . ,
*86It is true that, as stated in the majority opinion, this court has stated in the following cases the right of appeal is contingent upon the filing of a recognizance bond. State v. Johnson (1898), 21 Ind. App. 313, 314, 52 N. E. 422; State v. Walters (1928), 200 Ind. 235, 239, 240, 162 N. E. 444; State of Indiana v. Ketring (1935), 208 Ind. 424, 196 N. E. 332.
However, the Johnson case, supra, was grounded upon an 1881 statute, which expressly so provided as follows:
“Any prisoner against whom any punishment is adjudged may appeal to the criminal court, and, if there be none, then to the circuit court of the county, within ten days after trial, on entering into recognizance for his appearance at the next term of such court, as in other cases; and such appeal shall stay all proceedings.” (My italics.) §1712, Burns’ R. S. 1894 (§1643, R. S. 1881).
Furthermore, in the Walters and Ketring cases, supra (decided under the 1927 Act), the language, as relating to the necessity of filing a bond within ten [10] dajrs, was mere dicta. In each of said cases a bond was in fact filed within the ten-day period, and the filing was not an issue. The Ketring case, supra, merely held that the bond filed on appeal, if approved by the justice of the peace, did not have to be a good bond to effect the appeal. The Walters case, supra, held that on timely request for appeal, it became the duty of the court and not the appellant, to perfect the appeal. In that case this court stated:
“The practice before the justices of the peace and before the city courts must necessarily remain simple and free from technical requirements. All that is required to take an appeal from such courts is to plainly advise the court of a desire to appeal and to file within the time provided in the statute an appeal bond sufficient in amount and *87with surety to the approval of the court. To complete the appeal, the filing of the transcript is necessary, but since the statute provides, not that the appellant shall file it, but shall cause it to be filed, we believe that the request to the trial court that it be prepared and filed is sufficient. If the appellant requests the court to prepare it and the court refuses, the court may be compelled by mandate to do so. . . .
“ . . . the uncontradicted evidence showed that appellant’s counsel (who testified that his business and profession is ‘an attorney and justice of the peace’) said T told him we wanted an appeal made out to the circuit court ... I demanded an appeal right square off.’ These words, under the informal practice necessarily prevailing in the courts of justices of the peace and mayors, were sufficient to notify the court that the appellant desired that a transcript on appeal be prepared and filed. (My italics.)
“In the absence of any express directions to the contrary in the statute, we believe and hold that it is incumbent upon such court to prepare and certify the transcript on appeal and also to transmit it, together with all the other necessary papers and documents, to the criminal or circuit court.
The express language of the present statute, together with the reasoning of the case above quoted, causes me to believe that the statute must be construed to mean that all appeals, whether by request without bond or by the filing of a bond, must be taken within ten days. If, however, a bond is filed for the purpose of appeal within said ten-day period, “all other papers, documents and transcripts” necessary to the appeal may be filed in the criminal or circuit court within 15 days. §9-721, supra. It would seem that the effect of this latter provision is to give the justice of the peace or the judge additional time in which to perfect the appeal, provided the appellant is- at liberty *88under a recognizance bond. However, if the appellant remains a “prisoner” it is contemplated that the appeal shall be perfected forthwith.
Bobbitt, J., concurs.Note.—Reported in 148 N. E. 2d 558.