Rosenberg v. State

Decision Date22 November 1922
Docket NumberNo. 23936.,23936.
PartiesROSENBERG v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Tippecanoe County.

On petition for rehearing.

Petition overruled. For former opinion, see 134 N. E. 856.

WILLOUGHBY, J.

The appellant insists that the court erred in holding that the facts relied on in appellant's motion for a new trial on account of newly discovered evidence was controverted by the state. In this contention the appellant is not sustained by the record. The record shows that in support of said motion appellant filed the affidavit of Wilbur L. Hunt, which is as follows, omitting caption, jurat, and signatures:

Wilbur L. Hunt being duly sworn on his oath deposes and says that he is the same individual commonly known as William L. Hunt; that he was notified to appear before the circuit court of Lafayette at the trials of the state of Indiana v. Rosenberg and State of Indiana v. Hugh Rife; that at the time of said trial he was unable to appear before said court for the reason that he was ill and confined to his bed; that he is personally acquainted with the said Rosenberg and Rife; that he also knows that the car, said to have been stolen by Rosenberg and Rife, was in the possession of Rosenberg prior to December 10, 1920; that he had tried to buy the car before that date from the said Rosenberg; and that he would so testify before the said court. Further affiant saith not.”

Said affidavit was sworn to on the 19th day of January, 1921.

The record further shows that on January 27, 1921, the prosecuting attorney filed counter affidavits of Wilbur L. Hunt, William Rugenstein, and Michael Hynes. This affidavit of Wilbur L. Hunt was sworn to on the 25th day of January, 1921, and is as follows, omitting the caption, etc.:

“I, Wilbert L. Hunt, doing business in the city of Indianapolis, Marion county, Ind., at 910 North Illinois street, under the firm name of the Speedway Engineering Company, upon oath say: That I am the Wilbert L. Hunt who on the 19th day of January, 1921, made an affidavit to be used in a motion for a new trial made by Isadore Rosenberg in the Tippecanoe county, Indiana, circuit court, wherein the said Isadore Rosenberg was convicted after trial by jury of grand larceny. That in said affidavit I stated that I attempted to buy of said Rosenberg a Ford Sedan prior to the 10th day of December, 1920. That it is also the fact that said Rosenberg was in the possession of a Ford Sedan on that day, which was two or three days before or two or three days after Thanksgiving Day, 1920. I cannot fix the date. That I made no examination of said Ford Sedan. That I did not get into said Ford Sedan. That I did not look at the engine in said Ford Sedan. That I cannot say whether it did or did not have a broken glass in the wind shield. That I did not observe whether or not it had a tire carrier, and, if I was to see the same Ford Sedan now that I saw on the date above set out, I would have no means of identifying it as the Ford Sedan I saw Isadore Rosenberg with on the date above set out. I could not positively testify, under oath, that any certain Ford Sedan was the one I saw Isadore Rosenberg with at the time I have fixed. All of which is true to the best of my knowledge and belief.”

The joint affidavit of Rugenstein and Hynes also contradicts the statements of Hunt in his affidavit sworn to on January 19, 1921, and filed by appellant in support of his motion for a new trial; and also contains statements relative to the residence and office address of Louis B. Calvelage.

It is stated in the motion for a new trial:

“That the defendant testified at the trial of this cause that he purchased the automobile (which he is charged in the affidavit with stealing) on the 20th day of November, 1920, from one named John Hoffman; that at the time of such purchase he received a bill of sale for said automobile from the said John Hoffman, and that the bill of sale was acknowledged by a notary public in the city of Indianapolis, Ind., and that the said notary public, whose name is Louis B. Calvelage, witnessed the signing of said bill of sale by the said John Hoffman, and that said Louis B. Calvelage as such notary public acknowledged the execution of said bill of sale by the said John Hoffman, and saw the said John Hoffman deliver the said bill of sale to this defendant; and that said Louis B. Calvelage will so testify if a new trial is granted this defendant; all of which will fully appear from the affidavit of the said Louis B. Calvelage, and of this defendant filed herewith, and made a part of this specification and ground for a new trial.”

In his brief on petition for rehearing the appellant says:

“The affidavit of Louis B. Calvelage, filed in support of the motion for a new trial, showed that said Calvelage would testify that he did acknowledge this bill of sale and that the same was genuine; that he would so testify if a new trial was granted.”

Said affidavit does not show that said Calvelage would testify as above stated. It is as follows:

“I, Louis B. Calvelage, of 2610 West Michigan street, Indianapolis, Ind., being first duly sworn upon his oath, states that he has not received summons or subpœna to appear as a witness, nor has he received a summons to appear...

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6 cases
  • Kestler v. State
    • United States
    • Indiana Supreme Court
    • 6 April 1949
    ... ... conflicting inferences may reasonably be drawn therefrom, one ... tending to prove or favorable to the guilt of the accused and ... the other favorable to his innocence, it is not within the ... province of this court to determine which inference ought to ... control. Rosenberg v. State, 1922, 192 Ind. 485, 134 ... N.E. 856, 137 N.E. 53. If, in a case where the evidence is ... conflicting, the trial court finds against the weight ... thereof, this constitutes an error of fact and not of law, ... and it is the duty of the trial court to correct such error ... by ... ...
  • Sprague v. State
    • United States
    • Indiana Supreme Court
    • 24 June 1932
    ... ... Under such a state of the record this court would not be justified in disturbing the finding of the trial court on that issue. Gale v. State, 201 Ind. 532, 168 N. E. 241;Rosenberg v. State, 192 Ind. 485, 134 N. E. 856, 137 N. E. 53:Hinshaw v. State, 147 Ind. 334, 47 N. E. 157;Keyes v. State, 122 Ind. 527, 23 N. E. 1097.Appellant, in his motion for a new trial, aside from verdict not sustained by sufficient evidence and verdict contrary to law, assigned eightythree alleged ... ...
  • Nelson v. State
    • United States
    • Indiana Supreme Court
    • 5 October 1928
    ... ... Lee v. State (1901) 156 Ind. 541, 546, 60 N. E. 299;Howard v. State (1921) 191 Ind. 232, 237, 131 N. E. 403;Lee v. State (1922) 191 Ind. 515, 519, 132 N. E. 582;Rosenberg v. State (1922) 192 Ind. 485, 488, 134 N. E. 856, 137 N. E. 53.The finding is sustained by sufficient evidence and is not contrary to law.Judgment ... ...
  • Faulkenberg v. State, 24937.
    • United States
    • Indiana Supreme Court
    • 7 April 1926
    ... ... Lee v. State (1901) 60 N. E. 299, 156 Ind. 541, 546;Howard v. State (1921) 131 N. E. 403, 191 Ind. 232, 237;Lee v. State (1921) 132 N. E. 582, 191 Ind. 515, 519;Rosenberg v. State (1922) 134 N. E. 856, 137 N. E. 53, 192 Ind. 485;Polonious v. State (1923) 138 N. E. 259, 192 Ind. 664, 665;Chaney v. State (1923) 141 N. E. 223, 193 Ind. 533, 537. Also, this court in determining whether the evidence is sufficient to sustain a verdict of guilty will only consider the ... ...
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