Rose v. State

Decision Date07 October 1941
Docket NumberNo. 27561.,27561.
Citation219 Ind. 44,36 N.E.2d 767
PartiesROSE v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

John M. Rose was convicted of manslaughter, and he appeals.

Judgment affirmed.Appeal from Greene County Court; Orval D. Hunter, Judge.

Paul Haywood and George E. Jackson, both of Bloomfield, for appellant.

George N. Beamer, Atty. Gen., and John R. Walsh, Deputy Atty. Gen., for appellee.

ROLL, Judge.

Appellant was prosecuted by a grand jury indictment returned in the Greene Circuit Court charging John M. Rose, appellant herein, with the crime of murder in the second degree.

To this indictment the defendant entered a plea of not guilty. The issues were submitted to a jury for trial and a verdict was returned finding the defendant guilty of manslaughter; that the defendant was seventy-six years of age, and that he be imprisoned in the state prison for a period of not less than two years nor more than twenty-one years.

Appellant filed his motion for a new trial which was overruled and judgment was entered on the verdict and the defendant was sentenced to the Indiana State Prison in accordance with the verdict.

The record discloses that the cause was set for trial on January 2, 1941. The prosecuting attorney filed a motion for a continuance on the grounds that he had been elected as prosecuting attorney for Greene County at the November election 1940, and assumed the duties of his office January 1, 1941, and that he would not have time to prepare the case for trial, and asked for a reasonable extension of time in which to prepare for trial for said cause.

The court granted this motion and continued said cause until the 19th day of February, 1941. Appellant assigns this as error.

Application for a continuance is addressed to the sound discretion of the court, and will not be reviewed on appeal unless it is made to appear that the court abused that discretion to the injury of the complaining party. No such abuse is shown by the record. Cerealine Manufacturing Company v. Bickford, 129 Ind. 236, 28 N.E. 545;Wheeler v. State, 158 Ind. 687, 63 N.E. 975;Connors v. State, 183 Ind. 618, 109 N.E. 757.

Appellant relies upon § 9-1402, Burns' Statutes 1933, Sec. 2238, Baldwin's Ind.Stat.1934, and contends that this statute does not authorize a continuance under the facts set out in the petition. This statute is not in point for the reason that the provision of this statute applies only when a postponement is asked on the grounds of an absent witness. There was no error in granting the state a continuance of this case.

All the other errors assigned by appellant require a consideration of the evidence. The record before us discloses that appellant's motion for a new trial was overruled on the 12th day of March, 1941, the same being the twenty-first judicial day of the February term of the Greene Circuit Court. That on the 13th day of March 1941, the same being the twenty-second judicial day of the February term of said court, the defendant was sentenced in accordance with the verdict, and we quote from page 79 of the record: ‘And now the defendant prays an appeal to the Supreme Court of Indiana which appeal is granted, and ninety days are given the defendant in which to file bill of exception.’ No time was asked to file bill of exceptions on the 12th day of March, 1941, at the time the motion for a new trial was overruled. The record further discloses that the bill of exceptions was presented to the court on the 6th day of June, 1941, on which day the same was signed and filed with the clerk. This court takes judicial notice of the terms of court in the 63d judicial circuit: That June 6, 1941, was...

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3 cases
  • McConnell v. State
    • United States
    • Indiana Supreme Court
    • June 30, 1982
    ...abused that discretion to the injury of the complaining party. Gregory v. State, (1972) 259 Ind. 295, 286 N.E.2d 666; Rose v. State, (1941) 219 Ind. 44, 36 N.E.2d 767. The trial court did try another cause on January 14. The case at bar began on January 15 and was completed on January 16. N......
  • Peak v. State
    • United States
    • Indiana Supreme Court
    • January 11, 1960
    ...There is no showing of an abuse of discretion by the court. Hartsfield v. State, 1950, 228 Ind. 616, 94 N.E.2d 453; Rose v. State, 1941, 219 Ind. 44, 36 N.E.2d 767; Krupa v. State, 1927, 198 Ind. 695, 154 N.E. 666; Liese v. State, 1954, 233 Ind. 250, 118 N.E.2d Error is also claimed in the ......
  • Liese v. State
    • United States
    • Indiana Supreme Court
    • April 13, 1954
    ...not be disturbed in the absence of an abuse of that discretion. Souerdike v. State, 1951, 230 Ind. 192, 102 N.E.2d 367; Rose v. State, 1941, 219 Ind. 44, 36 N.E.2d 767. The trial court is in a much better position to determine the propriety of a continuance on this ground than is this court......

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