Roberts v. State

Decision Date05 November 1919
Docket Number23,512
Citation124 N.E. 750,188 Ind. 713
PartiesRoberts v. State of Indiana
CourtIndiana Supreme Court

Rehearing January 7, 1920.

From Randolph Circuit Court; W. H. Eichhorn, Special Judge.

Prosecution by the State of Indiana against Elisha Roberts. From a judgment of conviction, the defendant appeals.


Macy Nichols & Bales, for appellant.

Ele Stansbury, Attorney-General, Newman T. Miller and Dale F Stansbury, for the state.


Myers, J.

Appellant on an affidavit filed in the Randolph Circuit Court was tried and convicted of a felonious conspiracy to commit a felony. §§ 2647, 2260 Burns 1914, Acts 1905 p. 584, §§ 641, 371. From a judgment against appellant, assessing a fine of twenty-five dollars and imprisonment in the state prison for a period of not less than two years nor more than fourteen years, he prosecutes this appeal. The affidavit which includes three other persons as conspirators is not questioned. The overruling of appellant's motion for a new trial is the only error properly assigned and relied on for a reversal of the judgment.

Appellant, to support his motion for a new trial, insists: First, that the court erred in overruling his motion for a continuance. This motion rests solely on his own affidavit, filed on the morning of the day the cause was set for trial, March 26, 1918, wherein he states in substance that some weeks prior to this time he employed one George H. Ward, an attorney of the Randolph county bar, as his local counsel, and on whom he depended to make an active defense for him; that since the employment aforesaid, Ward's wife has become seriously ill and is now in a hospital in the city of Indianapolis, where she will likely remain for an indefinite time; that by reason of such illness, Ward declines to enter upon the trial at this time because of emergencies that may arise relative to the condition of his wife, and of this information he had no knowledge until March 25; that he had no means of ascertaining Ward's decision not to enter upon the trial because of the fact that Ward had not been in Randolph county during the week of March 18; that affiant has not engaged or employed any other counsel within the jurisdiction of Randolph county, and at this late hour he cannot safely engage the services of other counsel, as he verily believes, who could and would be able to familiarize themselves with matters necessarily required to protect his interest.

We know of no statute which makes the absence of counsel a ground for postponing the trial of a cause, except where the attorney for the party applying is a member of the general assembly of the State of Indiana. § 420 Burns 1914, Acts 1893 p. 16. An application such as we have here calls into action the sound discretion of the trial court, and is distinguishable from one where a party is seeking a continuance on account of the absence of evidence. In a case of the latter character, where a party brings himself within the requirements of the statute, he can demand a continuance as a matter of right, unless the prosecuting attorney will admit the truth of the facts which the defendant alleges that he can prove by the absent witness. § 2089 Burns 1914, Acts 1905 p. 584, § 218. Weaver v. State (1899), 154 Ind. 1, 3, 55 N.E. 858; Pettit v. State (1893), 135 Ind. 393, 34 N.E. 1118; Morris v. State (1886), 104 Ind. 457, 4 N.E. 148; Torphy v. State (1919), ante 30, 121 N.E. 659, 660; Moulder v. Kempff (1888), 115 Ind. 459, 17 N.E. 906.

The trial court in matters of this character will take judicial knowledge of the pending proceedings and the facts disclosed by its records, and all facts and circumstances obviously open to it as a basis for exercising its discretion. Detro v. State (1853), 4 Ind. 200. In this case the record shows that at least ten days prior to the day this cause was set for trial appellant was actively represented by counsel other than Ward pertaining to the taking of depositions, and six days before this same attorney examined the witnesses whose depositions were taken in appellant's behalf, and in court made and presented the motion supported by the affidavit heretofore mentioned, for the continuance of the trial. It does not appear that counsel, who was then and had been representing appellant for some time prior thereto, made any statement in any form to the court that he or they were not familiar with the facts and the law pertaining to appellant's defense, or that by reason of the time of their employment no opportunity was afforded them to properly prepare and present his defense. But from the record before us it clearly appears that appellant throughout the trial was well and ably represented by counsel.

As we have said, the motion in question called for the judicial discretion of the trial court, and we must assume that its ruling in this respect was made in the belief that no injustice to appellant would be done thereby. A ruling under such circumstances will not be disturbed by this court, unless it clearly appears that the lower court abused its discretion to the injustice and harm of the complaining party. We are not convinced that the affidavit filed in support of the motion made a case which left the court no legal option to refuse to grant a postponement of the trial. Wheeler v. State (1902), 158 Ind. 687, 697, 63 N.E. 975; Mead v. Burk (1900), 156 Ind. 577, 583, 60 N.E. 338; Evansville, etc., R. Co. v. Hawkins (1887), 111 Ind. 549, 13 N.E. 63; Louisville, etc., Traction Co. v. Montgomery (1917), 186 Ind. 384, 115 N.E. 673.

Appellant next insists that the court erred in admitting declarations of his codefendants, Pierson and Drake, made in his absence about eight months before the alleged arson was committed.

The fire occurred July 10, 1916, and a witness called by the state was permitted to testify, over the objection of appellant, that during a conversation between him and Pierson and Drake at their store in November, 1915, Pierson, in the presence of Drake, offered the witness $ 100 to burn their store, and Drake offered to give him an additional $ 50. At the close of the state's evidence appellant moved to strike out the statements of Pierson and Drake on the ground that he was not present at the time they were made; that they were immaterial, and because a prima facie case of conspiracy had not been shown. As we see this case, appellant was not one of the original conspirators. If under the evidence before us he was at all guilty, it was by joining a conspiracy already formed to do the unlawful act charged. By considering only the evidence most favorable to the state, an inference of such fact might be drawn, and, if so, we must assume that the jury so found. With that fact established, the rule is that one who connects himself with an existing conspiracy and joins in carrying out the common purpose and design will be deemed in law "a party to every act which had before been done by others and a party to every act which may afterwards be done by any of the others in furtherance of such design." 1 Greenleaf, Evidence (15th ed.) § 111; Card v. State (1887), 109 Ind. 415, 9 N.E. 591; Walton v. State (1882), 88 Ind. 9; Jones v. State (1878), 64 Ind. 473.

A conspiracy can seldom be made out by direct evidence consequently, the necessity for the rule permitting it to be established by circumstantial evidence or by isolated and independent facts. Cook v. State (1907), 169 Ind. 430, 82 N.E. 1047. It appears that in September, 1915, Pierson and Drake purchased the stock of goods situated in a ground-floor room of a building in Ridgeville, Indiana, and where they as owners thereof were operating the store at the time of the fire. The...

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