Opinion
April 17, 1945.
Appeal from Daviess Circuit Court.
Sidney B. Neal, Judge.
Rodes K. Myers and Hubert Meredith for appellant.
Herman Birkhead and Dan M. Griffith, Jr., for appellee.
Dismissing appeal.
Appellant under indictment charging murder, moved the court for bail. Upon hearing evidence the court overruled the motion and remanded appellant to jail awaiting trial at the succeeding term of court. Appellant thereupon filed his petition for writ of habeas corpus, and the matter was heard upon the same proof produced on the motion for bail. The Judge denied relief; dismissed the petition and again remanded appellant to jail. From this order appellant prosecutes appeal as is allowable under sec. 429-1, Criminal Code, Supp. 1944.
The appeal was filed within the statutory period, but there was a failure of notice to the "other party" as required or at all. The Attorney General moved for dismissal on the ground of failure of requisite notice, as was done in Helsley v. McKenzie, Jailer, 187 S.W.2d 279. In that case we held the failure to give the required notice to be fatal to the appeal, since without following the explicit provisions of the Code, supra, this court was without jurisdiction. What was said in that case applies here.
The same argument made in that case is advanced here, which justifies us in saying that upon a reading of the evidence it is clear that the Judge did not abuse the discretion vested in him in denying bail or the relief under the writ.
Appeal dismissed.