Ransbottom v. The State
| Decision Date | 06 March 1896 |
| Docket Number | 17,695 |
| Parties | Ransbottom v. The State |
| Court | Indiana Supreme Court |
From the Marshall Circuit Court.
The judgment is affirmed.
H. R Robbins, for appellant.
W. A Ketcham, Attorney-General, for State.
The appellant was convicted in the Marshall Circuit Court of rape, alleged in the indictment to have been committed on one Esther Schroll 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, 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, R. S 1894, (R. S. 1881, section 1672). 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. R. S. 1894, section 1840 (R. S. 1881, section 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 subpoena, 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, R. S. 1894, 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 1854, R. S. 1894, 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. We think that is a sound rule. And if it is so in a civil case, the reason is still stronger why it should be so in a criminal case. But going beyond the brief on behalf of the State, we are led to inquire whether the affidavit shows that the appellant exercised due diligence to secure the attendance of the witness. The affidavit as to diligence, after stating that the absent witness resides in Starke county, states "that on March 4, being the first day of this term of court, the defendant issued a subpoena to the sheriff of Marshall county, also to the sheriff of Starke county, Indiana, commanding each to summon Charles Grenert; that each of said sheriffs made diligent search and inquiry, but that said Charles Grenert evades or eludes them so that a subpoena cannot be served; * * * that said witness resides in Starke county, Indiana, and * his family, to-wit: his brother, Geo. Grenert, said that said witness had a job of making stave bolts or cutting wood in Grant county, and would return by plowing time in April, being about April 10; that affiant could not learn of his whereabouts in time to send subpoena to Grant county, but affiant verily believes that Grenert will return about April 10, or shortly thereafter."
Courts of justice have more efficient means of inducing the attendance of witnesses who are within the State than waiting for plowing time to bring them back.
No presumption can be indulged against the truth of the facts stated in an affidavit for a continuance, however strongly the court may suspect them to be false. Neither can any presumption be indulged in favor of such affidavit where it fails to state a necessary fact or insufficiently states it. The statement in the affidavit that "the defendant issued a subpoena to the sheriff of Marshall county, Indiana, also to the sheriff of Starke county, Indiana, commanding each to summon Charles Grenert," is far from showing that appellant caused the proper officer to issue a proper subpoena to each of the sheriffs mentioned, commanding them to summon the witness to appear in the Marshall Circuit Court to testify in the cause on behalf of appellant. If the return of the subpoena had been stated, and it exhibited to the court, the defective statement might have been cured. But there is nothing of the kind shown. The bare statement that the defendant issued the subpoena is no better than if the affidavit had stated that the clerk of the Starke Circuit Court had issued the subpoenas.
But that is not all. The affidavit shows that appellant was in possession of information that the absent witness was at that time in Grant county, Indiana, but it does not state when he received that information. It does state that he could not learn of his whereabouts in time to send a subpoena to Grant county. But that is not stating the facts concerning his diligence, but his conclusion from those facts. It was the exclusive province of the court to draw that conclusion, and his to state the facts. The court might, if he had stated the facts, draw an entirely different conclusion. Evidently fearing such a result, he has attempted to usurp the functions of the court and has stated his conclusion from the facts, namely, that appellant could not learn his whereabouts in time to send subpoena to Grant county, instead of stating the facts as to what he did and when he first learned that the witness was in Grant county, and allow the court to draw the conclusion as to whether there was time enough after he learned the whereabouts of the witness to send subpoena to Grant county. See McDermott v. State, 89 Ind. 187; McKinsey v. McKee, 109 Ind. 209, 9 N.E. 771.
Another ground specified in the motion for a new trial and urged as error, is the refusal to give certain instructions asked by the appellant. The record fails to show when the instructions were asked, whether before or after the trial. A party who desires special instructions...
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