Ransbottom v. State

• Decision Date: 06 March 1896
• Parties: RANSBOTTOM v. STATE.
• Court: Indiana Supreme Court

144 Ind. 250
43 N.E. 218

RANSBOTTOM
v.
STATE.

Supreme Court of Indiana.

March 6, 1896.

Appeal from circuit court, Marshall county; A. C. Capron, Judge.

Claude Ransbottom was convicted of the crime of rape, and appeals. Affirmed.

[43 N.E. 219]

H. R. Robbins, for appellant. E. G. Martindale, J. R. Houghton, S. H. Spooner, and Wm. A. Ketcham, Atty. Gen., for the State.

McCABE, J.

The appellant was convicted in the Marshall circuit court of rape, alleged in the indictment to have been committed on one Esther Scholl on December 4, 1894. Many errors are assigned, among which are the overruling of appellant's motion to quash the indictment, overruling appellant's motion for a new trial, and overruling his motion for and in arrest of judgment.

The only reason urged in argument in support of the motion to quash and in arrest is that the record does not disclose that the indictment was recorded, as required by section 1741, Rev. St. 1894 (section 1672, Rev. St. 1881). It was settled by this court in Heath v. State, 101 Ind. 512, that the failure to comply with such requirement does not injure a defendant who is, as was the case here, tried on the indictment that was actually returned by the grand jury.

One of the reasons assigned for a new trial was the refusal of the appellant's application for a change of venue on account of alleged prejudice and excitement in the county against the appellant. The statute leaves such an application to the sound discretion of the trial court. Rev. St. 1894, § 1840 (Rev. St. 1881, § 1771). And unless it appears that such discretion was abused to the injury of the complaining party, this court cannot interfere. Walker v. State, 136 Ind. 663, 36 N. E. 356, and authorities there cited. There was no error in either of these rulings.

The refusal to continue the cause on application of appellant is made one of the reasons for a new trial, as well as one of the specifications in the assignment of errors. The continuance was asked on the ground of the absence of Charles Grenert. There is, and can be, no question made that the facts proposed to be proven by the absent witness are competent and material evidence for the appellant. There are but two objections made to the affidavit in support of the court's ruling refusing the application to continue. The attorney general contends that the affidavit is insufficient, because it fails to show that the sheriff, in serving the subpœna, left the same at the residence of the witness, which residence was shown to be in Starke county, he being not found. No authority is cited by the attorney general in support of this proposition, nor do we know of any. That objection cannot be maintained. It is urged by the attorney general that, appellant being a competent witness, under section 1867, Rev. St. 1894 (section 1798, Rev. St. 1881), for himself, and the affidavit disclosing that the fact proposed to be proven by the absent witness was one which the appellant knew more about than the absent witness, or as much, at all events, his statement in his affidavit, required by section 1850, Rev. St. 1894 (section 1781, Rev. St. 1881), that the defendant “is unable to prove such facts by any other witness whose testimony can be as readily procured,” is on its face untrue. It is true, it does appear from the affidavit that appellant would necessarily know the facts proposed to be proven as well, at least, as the absent witness, and the law makes appellant a competent witness in his own behalf. It has been held by this court, in a civil case, that it is no cause for refusal of a continuance for an absent witness to a material fact that the same is known to the party himself, he being competent to testify to it; that he is not bound to resort to his own testimony, and is entitled to make his proof by disinterested and impartial witnesses. Fox v. Reynolds, 24 Ind. 46...