State v. Donelon

On Application nor Rehearing. Watkins, J. Application is made on the part of the two defendants, Joseph Johns and Dennis Donahue, for relief, upon the representation “that they have been condemned in the above entitled prosecution under an assumption erroneously made by this honorable court (that) they never appealed to this tribunal from the verdict and sentence therein rendered.” This is a remarkable statement for counsel to make in the face of the record, for our opinion opens thus, viz.: “ This appeal is prosecuted from the judgment and sentence of the court by John Donelon alone,” and concludes thus, viz.: “ There is no merit in the defendant’s complaint of the proceedings in the court below, and the judgment should be affirmed, and it is so ordered.” Certainly, this decree condemned no one other than the defendant plainly referred to, John Donelon, alone. The parties at present complaining were not mentioned or included. Practically, the ease, as to them, was left in identically the same position as though they had not appealed at all. It was our impression at the time the opinion was prepared that no other defendant than John Donelon had prosecuted an appeal. No other defendant than he was represented by counsel at the trial by oral argument or in printed briefs. Nothing in the transcript attracted our attention, at the time, to indicate any participation in the appeal on the part of the defendants now complaining — John Donelon having separately petitioned for an order of appeal. Since the present application was filed, our attention has been called to the separate and distinct order of appeal that was granted in their behalf; and also to the minutes of this court indicating that they had appeared by counsel and submitted the cause, on their part, on the argument and briefs of the defendant John Donelon. However, an examination of the record does not disclose any defence other than such as those John Donelon urged, and which were decided against him; and there is in counsel’s motion no reason or suggestion offered as justifying any change in our decree except as to its form. It is evident that the decree should be amended so as to include the two defendants, Joseph Johns and John Donelon; but for this purpose a rehearing is unnecessary. *759 It is therefore ordered and decreed that the judgment and decree heretofore pronounced be so altered and amended as to embrace the two defendants, Joseph Johns and Dennis Donahue, and that, as thus amended, same remain unchanged. Rehearing refused.