Behler v. State

• Decision Date: 14 October 1887
• Citation: 13 N.E. 272,112 Ind. 140
• Parties: Behler v. State.
• Court: Indiana Supreme Court

112 Ind. 140

13 N.E. 272

Behler

v.State.

Supreme Court of Indiana.

October 14, 1887.

Appeal from circuit court, De Kalb county; W. Wes McBride, Judge.

W. L. Penfield, for appellant. Henry C. Peterson, Chas. Emanuel, and the Attorney General, for appellee.

Elliott, J.

The appellant prosecutes this appeal from a judgment declaring him guilty of the misdemeanor of selling liquor to a person under 21 years of age. The evidence shows, without contradiction, that the person to whom the liquor was sold was not more than 17 years old, and it also tends very strongly to show that the appellant had reason to believe, and did believe, that he was not of the age of 21 years.

On the trial the court permitted the prosecuting attorney to read in evidence an affidavit of the appellant filed in a motion for a continuance. We perceive no error in this ruling. The admissions in such an affidavit are made, it is to be presumed, with care and deliberation, and they were made under oath. Admissions so made are certainly as competent as oral admissions made to a clerk, a sheriff, or any other individual; and surely no one would doubt that an oral admission of material fact would be admissible. Statements in an affidavit for continuance are not admitted, as counsel suppose, because they attack the general character of the accused, but because they tend to prove or disprove some material fact, or to contradict a witness introduced by the accused. In this case, the statements tended to contradict the statements of the appellant when on the witness stand, as well as statements of his brother, who testified in his behalf. Affidavits for a continuance are entirely unlike affidavits for a change of venue, and counsel go very far astray in asserting their similarity. Affidavits of the former class are required to state material evidentiary facts, and, when they are stated, they are affirmed by the affiant to be true. He thus admits, in a very solemn manner, their truth, and this admission may be used against him. In affidavits for a change of venue, no evidentiary facts are stated, and they cannot, therefore, supply evidence to be used on a trial.

The act of an accused in making a sworn statement of a fact or facts that he expects to prove by a witness, and in stating that he can prove such fact or facts by no other witness, is a purely voluntary act, deliberately performed, and with ample time for reflection. It is no doubt true that an accused may show that he was mistaken as to some or all of the statements contained in his affidavit, and so, too, he has a right to explain them, if he can, by competent evidence; but the statements are, nevertheless, admissions, and, as such, entitled to go to the jury. There is nothing giving to the statements in an affidavit for a continuance a privilege, nor is there anything which impresses upon them any...