Branham v. State , 203 Ind. 486 ( 1932 )

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.