Burkus v. State, 25263.
| Decision Date | 24 February 1933 |
| Docket Number | No. 25263.,25263. |
| Citation | 184 N.E. 409,204 Ind. 467 |
| Parties | BURKUS v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from St. Joseph Circuit Court; Cyrus E. Pattee, Judge.
John Burkus was convicted of a violation of the Wright Law, and he appeals.
Judgment reversed, and motion for new trial sustained.
See, also, 202 Ind. 341, 174 N. E. 292.
Geo. Sands, of South Bend, for appellant.
James M. Ogden, Atty. Gen., for the State.
The appellant was charged, jointly with another, in an affidavit filed in the St. Joseph circuit court, with violating the Wright Law. Said affidavit consisted of three counts; the first, charging him with unlawfully possessing intoxicating liquor, the second, charging him with unlawfully maintaining, and assisting in maintaining, a liquor nuisance, and the third, for unlawfully selling, bartering, exchanging, giving away, and furnishing intoxicating liquor.
The defendant was found guilty on the second and third counts of the affidavit, and sentenced to the Indiana State Farm for six months, and fined in the sum of $250.
The error relied upon for reversal is the overruling of the motion for a new trial. It appears from the record that the appellant filed a motion and affidavit for a continuance of his trial on account of the absence of a witness, and set out in the affidavit and motion what the witness would testify to if present. The prosecuting attorney admitted the truth of the facts contained in the affidavit as follows: “The state admits the truth of all the facts, properly pleaded, contained in the affidavit of such defendant.” The court overruled the motion for continuance, and a proper exception was taken. The appellant contends that the admission was qualified and equivocal, and therefore not within the statute, which provides: “*** If, thereupon, the prosecuting attorney will admit the truth of the facts which the defendant, in his affidavit for a continuance, alleges that he can prove by the absent witness, or by the written or documentary evidence therein specified and described, the trial shall not be postponed for that cause.” Section 2250, Burns' 1926.
Appellant relies upon the case of Torphy v. State, 188 Ind. 30, 121 N. E. 659, as an authority to sustain his contention that the motion of continuance should have been sustained. This case is entirely different from the instant case. In that case the state did not admit all that was set out in the affidavit, but expressly excepted to a material part of the affidavit and motion for a continuance. In this case, the state “admits the truth of all the facts, properly pleaded, contained in the affidavit of the defendant.” The words “properly pleaded” neither weakens nor strengthens the affidavit, and it substantially complies with the statute.
The motion for a continuance in a criminal case on the part of the defendant is a matter in the sound discretion of the trial court, and, unless it is shown that there has been an abuse, its conclusion will not be disturbed. Connors v. State, 183 Ind. 618, 622, 109 N. E. 757;Torphy v. State, 188 Ind. 30, 121 N. E. 659.
In the instant case it is not shown that the court abused its discretion in refusing to grant the continuance, and therefore no error.
The appellant predicates error on account of the court permitting State's Exhibit A being introduced in evidence, and being an affidavit and search warrant issued upon said affidavit. The search warrant was issued from the city court of the city of South Bend by Chester L. Du Comb, Judge.
We can see no reason for the court to have refused the admission of Exhibit A. The proceedings to obtain the search were regular as far as the evidence shows. The search warrant recites the fact that the affidavit upon which the warrant had been issued had been filed in the city court, and a copy was set out. The signature and seal of the court were properly affixed to the warrant. The...
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