Bernhamer v. State
| Decision Date | 13 May 1890 |
| Docket Number | 14,152 |
| Citation | 24 N.E. 509,123 Ind. 577 |
| Parties | Bernhamer v. The State |
| Court | Indiana Supreme Court |
From the Marion Superior Court.
The judgment is reversed for further proceedings not inconsistent with this opinion.
W. F A. Bernhamer, W. B. Walls, C. S. Denny and W. F. Elliott, for appellants.
J. L Mitchell, Prosecuting Attorney, for the State.
This was a suit in the Marion County Superior Court by the State against the appellant and one Abraham Sagalowsky, upon three several recognizances, executed by the said Sagalowsky and the appellant, each conditioned for the appearance of Sagalowsky in the Marion County Criminal Court to answer three several charges of receiving stolen goods.
Each paragraph of the complaint alleges that an indictment was returned into the criminal court of Marion county by the grand jury of said county on the 16th day of December, 1886, against Abraham Sagalowsky, and that he was arrested thereon and confined in the jail of said county; that on the 21st day of December, 1886, the said Sagalowsky and the appellee entered into the recognizances in suit to secure his release therefrom; that said recognizances were forfeited and judgment of forfeiture duly entered by the Marion Criminal Court.
Each of the recognizances set out with the complaint is conditioned for the appearance of Sagalowsky in the criminal court of Marion county to answer any indictment that might be returned against him for receiving stolen goods.
It is contended by the appellant that each paragraph of the complaint is bad, because it does not allege that an indictment was returned against the principal obligor after the execution of the recognizances.
We are unable to agree with the appellant in this contention. Section 1715, R. S. 1881, provides that
If the principal in the recognizances in suit had been indicted, arrested and confined in jail, and was released on such recognizances, as alleged in the complaint, the conditions contained therein, under the provisions of this statute, were wholly immaterial. The parties executing the same became bound thereby to the full extent contemplated by the law requiring such recognizances as a condition precedent to the release of the principal.
We do not think the complaint defective in the matter urged against it by the appellant.
On the 19th day of March, 1887, the appellant filed an affidavit for a change of venue in this cause from Marion county, and moved the court thereon for such change, but his motion was overruled, and he excepted.
The cause assigned in the affidavit for a change of venue was that the plaintiff had an undue influence over the citizens of Marion county.
At the time of filing such affidavit a rule of the Marion Superior Court was in force which required an application for a change of venue to be made at least five days before the day on which the cause stood on the trial calendar for trial, unless sufficient cause was shown by affidavit for not making the application within the time prescribed.
This application was made less than five days before the cause stood for trial. The trial calendar of this cause was made on the 2d day of March, 1887, and hung up in the court-room in a place where the trial calendar is always kept for the inspection of attorneys having business in said court.
The cause shown by affidavit for not making this application...
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