Anderson v. State
| Decision Date | 07 June 1928 |
| Docket Number | 25,452 |
| Citation | 161 N.E. 625,200 Ind. 143 |
| Parties | Anderson v. State of Indiana |
| Court | Indiana Supreme Court |
1. CRIMINAL LAW---New Trial---Surprise---Diligence of Defendant.---The courts are careful to see that a miscarriage of justice shall not occur through surprise or mistake, but they will not grant relief unless it appears that the surprise or mistake was in no way attributable to a defendant's negligence or lack of diligence. p. 145.
2. CRIMINAL LAW---New Trial---Surprise---Held Insufficient.---Defendant's surprise resulting from his wife testifying against him in a prosecution for sodomy alleged to have been committed on her ten-year old sister after the wife had promised that if he would turn over to her all his money, she would see the prosecuting attorney and have the case dismissed, was not such surprise, within cl. 6 2325 Burns 1926, as to require the granting of a new trial for surprise which ordinary prudence could not have guarded against. p. 145.
3. CRIMINAL LAW---New Trial---Surprise---Continuance Must be Asked.---One who claims surprise at the admission of testimony against him must ask for a postponement of the trial or a continuance so that he may be prepared to meet such testimony; he will not be allowed to speculate on obtaining a favorable verdict and, when it is found against him, claim the right to a new trial on the ground of surprise. p. 146.
4. CRIMINAL LAW---New Trial---Accident or Surprise---Discretion of Trial Court.---The granting of a new trial on the ground of accident or surprise, as provided by subd. 6, 2325 Burns 1926, is within the sound discretion of the trial court. p 146.
5. CRIMINAL LAW---New Trial---Surprise---Abuse of Discretion.---Abuse of discretion in refusing to grant a new trial for surprise because the defendant's wife testified against him in a prosecution for sodomy committed on her ten-year old sister, after promising him that she would see the prosecuting attorney and have the case dismissed, was not shown. p. 146.
6. CRIMINAL LAW---New Trial---Newly-discovered Evidence---Insufficient Cause.---Where the exact time of the commission of the crime is not of the essence of the offense, a variance from the time alleged in the indictment or affidavit is not material. Therefore, alleged newly-discovered evidence tending to show that the offense, if committed, was committed on a later date, but on a date prior to the finding of the indictment or the filing of the affidavit, would not require the granting of a new trial under subd. 8, 2325 Burns 1926. p. 147.
7. CRIMINAL LAW---New Trial---Newly-discovered Evidence---Received with Great Caution.---Motions for a new trial for newly-discovered evidence (subd. 8, 2325 Burns 1926) are received with great caution, and careful scrutiny is given to the evidence alleged to have been discovered. p. 148.
8. CRIMINAL LAW---New Trial---Newly-discovered Evidence---Diligence.---A motion for a new trial on the ground of newly-discovered evidence must allege facts showing due diligence to discover the evidence before trial. p. 148.
9. CRIMINAL LAW---New Trial---Newly-discovered Evidence---Probability of Different Result.---In order to warrant the granting of a new trial for newly-discovered evidence, such evidence must be very material and decisive in character, and must be such as to raise a strong presumption that, in all probability, it would bring about an opposite result on another trial. p. 148.
10. CRIMINAL LAW---New Trial---Newly-discovered Evidence---Court's Discretion.---The granting of a motion for a new trial for newly-discovered evidence rests in trial court's sound discretion. p. 148.
11. CRIMINAL LAW---New Trial---Newly-discovered Evidence---Motion Properly Overruled.---The trial court held to have exercised sound discretion in overruling defendant's motion for a new trial on the ground of newly-discovered evidence where the newly-discovered evidence would have merely contradicted the state's witnesses as to where defendant was at the time the crime was alleged to have been committed. p. 148.
From Elkhart Superior Court; William B. Hile, Judge.
Albin G. Henderson was convicted of sodomy, and he appeals.
Affirmed.
Claude A. Lee, for appellant.
Arthur L. Gilliom, Attorney-General, and Harry L. Gause, Deputy Attorney-General, for the State.
The appellant was convicted of the crime of sodomy under Acts 1905, ch. 169, § 473, § 2566 Burns 1926. The only question raised and sought to be presented arises under the assignment that the court erred in overruling appellant's motion for a new trial, which is based solely on the sixth and eighth subdivisions of § 2325 Burns 1926, viz: "accident or surprise which ordinary prudence could not have guarded against" and "newly-discovered evidence, material for the defendant, which he could not, with reasonable diligence, have discovered and produced at the trial."
The appellant's sister-in-law, who was ten years of age, was the prosecutrix. She testified that the appellant took her, alone, to a vacant house, (which he had rented and into which he and his wife, her older sister, were about to move), and there perpetrated the crime. The appellant, in an affidavit filed with his motion for a new trial, alleged that, before his trial and while he was confined in the county jail, his wife visited him and informed him that if he would turn over to her $ 65, which was all his money, she would see the prosecuting attorney and have the prosecution dismissed; that he relied upon these representations, gave his wife the money, and was not prepared for trial "in the way of witnesses, money and defense." He was, however, represented at the trial by counsel.
The courts are careful to see that a miscarriage of justice shall not occur through surprise or mistake, but they will not grant relief unless it appears that the surprise or mistake was in no way attributable to a defendant's negligence or lack of diligence. Ex parte Walls (1878), 64 Ind. 461. Appellant's "surprise," resulting from his wife's testifying at the trial, instead of prevailing upon the prosecutor to dismiss the prosecution, is not such surprise that "ordinary prudence could not have guarded against."
Denial of the right and opportunity to prepare for trial is a ground that can be included as cause for a new trial (16 C. J. 1129; § 2325 Burns 1926), but considering the nature of the charge against appellant it seems to us that ordinary prudence and proper diligence would...
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