Alyea v. State
| Decision Date | 27 October 1926 |
| Docket Number | No. 24903.,24903. |
| Parties | ALYEA v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Rush Circuit Court; Fremont Miller, Judge.
On petition for rehearing. Petition denied.
For former opinion, see 152 N. E. 801.
In appellant's brief, he says that the only question he desires to present upon petition for rehearing is the ruling of the court upon the motion to be discharged on account of delay, and he asks that this court give careful consideration to this question and consider the facts as disclosed by the record in this case. Appellant claims that this court inadvertently failed to consider all of these facts, in arriving at its conclusion that appellant fails to show facts which brings him within the provisions of the statute, and that the opinion fails to disclose all of the facts shown by the record. He says the record is absolutely silent and fails to disclose any reason or excuse for failing to bring appellant to trial, until the eighth term of court after he had been arrested and given bond.
The record shows that on the 3d day of April, 1923, being the fiftieth judicial day of the February term, 1923, of the Decatur circuit court, an affidavit was filed against the appellant charging him with the sale of intoxicating liquor. The affidavit is set out on page 2 of the record, and on page 3 of the record appears the following entry:
“And now the court orders bench warrant issued for the arrest of said defendant, which the clerk of this court accordingly issues, and now the court fixes bail at $500.”
The record fails to show that the appellant gave bail or entered into a recognizance of any kind. It is true that the transcript contains the copy of a verified motion by defendant to be discharged on account of delay. In the motion the appellant alleges that he was arrested by bench warrant issued by said Decatur circuit court, Decatur county, Ind., and thereupon, at said time, said defendant duly entered into a continuing recognizance in said cause in the sum of $500 with surety duly approved by said Decatur circuit court, conditioned for the appearance of said defendant in said Decatur circuit court, from day to day and term to term, to answer said indictment and until said defendant should be finally discharged. The motion also alleges that said recognizance is the only recognizance ever entered into in said cause. There is no proof of the facts thus alleged in appellant's affidavit to be discharged. The record, as we have said, is silent on the subject and there is no bill of exceptions to show what proof, if any, was offered to support such allegations.
[1] The act of 1915 (Acts 1915, c. 61, p. 122, R. S. 1926, § 2332) makes a motion a part of the record without a bill of exceptions, but it does not require the court to take the allegations of fact in such motion as being true, unless they have been shown to be true by evidence. Recitals of fact in a motion require proof the same as an allegation of fact in any other pleading or...
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