Denny v. State
| Citation | 190 Ind. 76,129 N.E. 308 |
| Decision Date | 07 January 1921 |
| Docket Number | No. 23726.,23726. |
| Parties | DENNY et al. v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Criminal Court, Marion County; James A. Collins, Judge.
Andrew Denny and another were convicted of having stolen automobile tires, and they appeal. Affirmed.
Clyde E. Baker and Frank P. Baker, both of Indianapolis, for appellants.
Ele Stansbury and Remster A. Bingham, both of Indianapolis, for the State.
The appellants were jointly convicted upon an indictment charging them with having stolen certain automobile tires on the 8th day of March, 1919. They jointly moved for a new trial for reason set out in the motion, and the overruling of such motion is the only error assigned on appeal.
[1] The defendants were arrested on the 14th day of April, 1919, and had a preliminary hearing in the police court some days later. They were indicted on May 29, 1919, the indictment setting out specifically the date of the alleged larceny, as being the 8th day of March, 1919. The trial was had on the 27th and 28th days of October, 1919, and the verdict was returned on the latter date. Some of the witnesses could not remember the date when the tires were taken, but all said that it was late at night on Saturday or Sunday, about the 8th of March, 1919. Appellants filed their motion for a new trial on the 13th day of November, 1919, and filed with it certain affidavits of the appellant Brown and another, sworn to on the 11th and 13th days of November, respectively. It is urged that the trial court should have granted a new trial on the ground of newly discovered evidence, as shown by these affidavits. But it appears from the record and from the affidavits that the defendant Brown was out on bond from the time of his arrest until the date of the trial, and that he was present in court throughout the trial. And the alleged newly discovered evidence is that “one Alfred Brown” was in jail in Newcastle, in Henry county, from the afternoon of March 8, 1919, until the morning of March 10, 1919, being from Saturday afternoon until Monday morning, and on the latter date was fined for a violation of the Automobile Speed Law, and that the sheriff of Henry county will so testify. The only excuse offered for not producing this evidence at the trial is that affiant “made diligent effort to recall his whereabouts on said nights and made diligent efforts to learn of his whereabouts on said night, that he made inquiry and consulted his friends and acquaintances in his effort to recall his whereabouts, that he consulted such memoranda as he had in his effort to fix his whereabouts, but notwithstanding this diligence affiant did not recall that he had been in jail in Newcastle, Ind., and he did not inform his counsel of the fact, and his counsel did not know that he had been in jail in Newcastle.” Aside from the fact that the sheriff of Henry county does not profess in any way to identify appellant Brown as the man who was in jail, but only swears that “one Alfred Brown” was confined therein, we think that in view of the time which elapsed after the arrest and indictment of appellant before his trial, during which he was at liberty on bail, and the fact that the precise date sworn to by those witnesses who gave any date, in answer to direct questions asked by the prosecuting attorney, as the date of the larceny, was stated in the indictment, and that it affirmatively appears that the same attorney who defended appellants in the criminal court also appeared for them in the police court, before the indictment was returned, the affidavits fail to show sufficient diligence to entitle appellants to another hearing. Appellants both testified in their own defense at the trial, and offered no evidence whatever of being at any other place at the time of the larceny, but only denied that they were present and took part in stealing the tires. Some of these tires were found on an automobile which belonged to and was driven by appellants at the time they were arrested, and appellants testified that these tires were put thereon by the man in whose house more than a dozen other automobile tires stolen at the same time were found. The affidavits failed to show sufficient cause for granting a new trial.
[2] Four different witnesses were asked questions on cross–examination to which objections were sustained by the court, and the questions were not answered. It is insisted that these questions were prejudicial to the defense, whether objections were sustained or not. And it is charged that the prosecuting attorney sought by such...
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Foust v. State, 24406.
...been an abuse of discretion will the judgment of a trial court be reversed. Eacock v. State, 169 Ind. 488, 82 N. E. 1039;Denny v. State, 190 Ind. 76, 129 N. E. 308. [11] In Pierson v. State, 188 Ind. 239, 123 N. E. 118, it was held, though a defendant in a criminal prosecution testifying in......
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Brooks v. State, 771S199
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