Detro v. State

Decision Date02 June 1853
PartiesDetro v. The State
CourtIndiana Supreme Court

APPEAL from the Wells Circuit Court.

The judgment is affirmed with costs.

J. R Slack, for the appellant.

R. A Riley, for the state.

OPINION

Roache J.

This was an indictment for larceny against Detro and one David Brown. Plea, not guilty. There was a trial, and verdict of guilty. Motion for a new trial overruled, and judgment on the verdict.

Detro alone appeals.

The only error assigned is, that the Court below improperly refused to continue the case upon sufficient cause shown by an affidavit.

The material allegations of the affidavit are, that the defendant could prove by one David Jones, a resident of Miami county, Ohio, "that at the time said property in said indictment is alleged to have been stolen, this defendant was in the town of Greenville, and in the neighborhood, in Darke county, Ohio; and further, that by said Jones he can prove his entire innocence of said charge," &c.; "that the indictment was found at the present term of this Court, and this defendant has not had any opportunity of procuring testimony," &c.; "and that he would be able to procure said testimony by the next term of the Court," &c.

On the return of the verdict, the defendant moved for a new trial, assigning as a cause, among others, the refusal to grant him a continuance upon his affidavit. This being the sole error complained of here, is the only question for our consideration.

The motion for a continuance, based upon an affidavit of the party, is addressed to the sound discretion of the Court trying the cause; and the propriety of granting or refusing it must depend, to a great extent, on the peculiar circumstances of each case. From the very nature of the case, the Court trying a cause, witnessing all the proceedings, and being from personal observation familiar with all the attendant circumstances, has the best opportunity of forming a correct opinion upon the case presented. The general principles relative to the granting of continuances, are well and clearly defined; but of necessity there is a considerable latitude of discretion left to be exercised by the Court, and if no general principle has been violated, the presumption will be in favor of the action of the Court.

In so far as they are vested with discretionary powers, they will be presumed to have been properly exercised, until the contrary is shown. All their decisions are, it is true, subject to revision; but, in all such cases, the ruling of the Circuit Court will be presumed to have been in accordance with the justice and merits of the case, unless the party complaining shows unequivocally that the Court has been guilty of an abuse of its discretionary powers, and that his rights have been injuriously affected by such abuse. Gordon v. Spencer, 2 Blackf. 286.

The affidavit does not present such a...

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22 cases
  • Johnston v. Little Horse Creek Irrigating Co.
    • United States
    • Wyoming Supreme Court
    • 19 May 1893
    ... ... At the ... November, 1890, term the court ordered the cause to be ... transferred to the State board of control pursuant to the ... provisions of Section 47 of the act of December 22, 1890, ... regulating the supervision of water. From the ... 310; Morris v ... Graves, 2 Ind. 354; Tyin v. Halstead, 74 N.Y ... 604; Tucker v. Leland, 75 N.Y. 186; State v ... Meloney, 79 Ia. 413; Detro v. State, 4 Ind ... 200; Ray v. Northrup, 55 Wis. 396; Seymour v. Board, ... etc., 40 Wis. 62.) ... Brown & ... Arnold, for Little ... ...
  • Warner v. State
    • United States
    • Indiana Supreme Court
    • 6 March 1888
    ... ... very differently, and, to enable the court to judge, the ... specific facts must be before it ...           It has ... long been the rule that the court will not reverse a judgment ... upon a ruling denying a continuance, unless there has been an ... abuse of discretion. Detro v. State, 4 Ind ... 200; Wassels v. State, 26 Ind. 30; ... Pratt v. State, 56 Ind. 179. It is clear ... that there was no abuse of discretion in this instance ...          The ... appellant introduced testimony showing that he was confined ... in the State prison for twenty-one ... ...
  • Warner v. State
    • United States
    • Indiana Supreme Court
    • 6 March 1888
    ...the court will not reverse a judgment upon a ruling denying a continuance unless there has been an abuse of discretion. Detro v. State, 4 Ind. 200;Wassels v. State, 26 Ind. 30;Prutt v. State, 56 Ind. 179. It is clear that there was no abuse of discretion in this instance. The appellant intr......
  • Way v. State
    • United States
    • Indiana Supreme Court
    • 21 May 1946
    ... ... this, the trial court will take judicial knowledge of the ... pending proceedings, the facts disclosed by the records, and ... all facts obviously open to it as a basis for exercising its ... discretion. Roberts v. State, supra, 188 Ind. at ... page 716, 124 N.E. 750; Detro v. State, 1853, 4 Ind ...           There ... is no showing in the record that the amended affidavit filed ... on the date of trial was different in substance from the ... original, that it was based on other or different facts, that ... it would require other or different evidence ... ...
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