Morris v. State

Decision Date05 January 1886
Citation104 Ind. 457,4 N.E. 148
PartiesMorris v. State.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Perry circuit court.

C. H. Mason and Wm. Hennings, for appellant.

W. A. Land and E. E. Drumb, for appellee.

NIBLACK, C. J.

On the thirtieth day of June, 1885, the grand jury of Perry county returned an indictment against the appellant, Tobias Morris, for an assault and battery with intent to commit a rape on the person of one Mary Deom, a girl about 14 years old. The appellant entered a plea of not guilty to the indictment, and the cause was continued. On the fourth day of November then next ensuing the appellant withdrew his plea theretofore entered, and moved to quash the indictment on account of some alleged irregularity in the organization of the grand jury which returned it. This motion to quash the indictment was sustained, but the grand jury of the county, being then in session, returned another indictment on the same day against the appellant for the same offense. It was about 4 o'clock in the afternoon when this latter indictment was returned, and the appellant, being in court upon his recognizance to answer any further indictment which might be presented against him, moved that the trial of the cause should be postponed until the next morning, to allow him further time to consult counsel and to prepare for his defense; but his motion was overruled, and he was required to submit to an immediate trial, the result being a verdict of guilty as charged, and a judgment of imprisonment in the state prison for the term of two years.

Questions are made here only upon the refusal of the circuit court to postpone the trial until the following day, and upon the sufficiency of the evidence to sustain the verdict. The several statutory provisions concerning the continuance of causes have reference as well to the temporary postponement of the trial of causes, and when a cause is postponed, either until a later day in the same term, or until the next term, it is said to be and is, in legal contemplation, continued. Bickn. Crim. Pr. 217; Moore, Crim. Law, § 289; Hubbard v. State, 7 Ind. 160. Motionsto continue, as well as to postpone, are addressed to the sound discretion of the court, and neither a continuance nor a postponement can be demanded as a matter of right, except upon cause shown. Busk. Pr. 224, 225; Moore, Crim. Law, supra, § 287. The decision of a nisi prius court, upon any matter resting in its sound discretion, may be reviewed...

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