Rosenberg v. State
Decision Date | 22 November 1922 |
Docket Number | No. 23936.,23936. |
Parties | ROSENBERG v. STATE. |
Court | Indiana 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.
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:
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.:
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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