Anderson v. State
| Decision Date | 07 June 1928 |
| Docket Number | No. 25452.,25452. |
| Citation | 161 N.E. 625,200 Ind. 143 |
| Parties | ANDERSON v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Elkhart County; Wm. B. Hile, Judge.
Albin G. Anderson was convicted of sodomy, and he appeals. Affirmed.Claude A. Lee, of Elkhart, for appellant.
Arthur L. Gilliom, Atty. Gen., and Harry L. Gause, Deputy Atty. Gen., for the State.
The appellant was convicted of the crime of sodomy under section 473, c. 169, Acts 1905 (section 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 section 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; section 2325, Burns' 1926), but considering the nature of the charge against appellant, it seems to us that ordinary prudence and proper diligence would have required him to anticipate what his wife did, and to have avoided the situation of unpreparedness of which he complains.
The state, and not his wife, was appellant's adverse party, and the rule, announced in the case of Haynes v. State ex rel. (1873) 45 Ind. 424, cited by appellant, is not applicable here. It was there held that, where a party to a suit tells his adversary that certain matters in issue will not be controverted, it will not be negligence for him to rely on such statements, and omit to procure evidence to prove what the other party has told him would not be denied, and, if such matters are controverted, the party misled will be entitled to a new trial on the ground of surprise.
Moreover, appellant did not properly save his point at the trial, as he failed to ask for a continuance or postponement. Stalcup v. State (1891) 129 Ind. 519, 28 N. E. 1116, 20 R. C. L. 287. A party who claims no surprise at the trial is not allowed to speculate on the verdict, and, when it is found against him, claim the right to a new trial on the ground of surprise. 16 C. J. 1128, 1129.
Granting a new trial on the ground of accident and surprise is within the sound discretion of the trial court. Todd v. State (1865) 25 Ind. 212, 20 R. C. L. 286, and we cannot say in this case that the court abused its discretion.
The alleged newly discovered evidence set up in affidavits in support of the motion for a new trial is: (1) That Harriet M. Heckman would testify that she rented the house at 816 Monroe street (where it was proved the crime was committed) to appellant on June 26, 1926, and “late in the middle of the afternoon” delivered the key to appellant's wife, and that at that time appellant was with his wife and infant child; (2) that Cora M. Grady would testify that appellant, in company with his wife and...
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