Rowe v. State

• Decision Date: 29 November 1921
• Docket Number: No. 23939.,23939.
• Citation: 191 Ind. 536,133 N.E. 2
• Parties: ROWE v. STATE.
• Court: Indiana Supreme Court

191 Ind. 536

133 N.E. 2

ROWE

v.STATE.

No. 23939.^*

Supreme Court of Indiana.

Nov. 29, 1921.

Appeal from Superior Court, Elkhart County; Wm. B. Hile, Judge.

Archibald Rowe was convicted of violation of the prohibition law, and he appeals. Affirmed.

Robert E. Proctor, of Elkhart, and Elias D. Salsbury, of Indianapolis, for appellant.

U. S. Lish, Atty. Gen., and Mrs. E. Franklin White, Deputy Atty. Gen., for appellee.

WILLOUGHBY, J.

The defendant was convicted of a violation of the prohibition law. The affidavit charged that-

“On or about the 16th day of December, 1920, at Elkhart county, in the state of Indiana, Archibald Rowe did then and there unlawfully keep and have in his possession certain intoxicating liquors, with intent to unlawfully sell, barter, exchange, give away, or otherwise dispose of the same.”

This affidavit was filed on the 17th day of December, 1920, and on the same day defendant appeared in open court and entered a plea of guilty. The court deferred sentence until December 28, 1920. On that day, defendant, by his attorney, filed a motion for leave to withdraw his plea of guilty and enter a plea of not guilty. This motion was supported by the affidavit of defendant setting forth in detail his reasons why such motion should be sustained. The court then fixed December 31, 1920, as the time for hearing on the motion to withdraw the plea of said defendant.

It appears from the record that at the time set for the hearing of said motion the defendant appeared in person and by his attorney, and the state of Indiana appeared by the prosecuting attorney-

“and evidence is introduced on behalf of the state in opposition to the facts disclosed in the affidavit filed in support of the motion for leave to withdraw defendant's plea of guilty, heretofore entered herein. And the court, having heard the evidence adduced and being well advised in the premises, upon due consideration, overrules said motion for leave to withdraw plea. ***”

The defendant then filed a motion in arrest of judgment, which motion was overruled and judgment entered, from which appellant appeals. The errors relied on for reversal are: (1) The court erred in overruling appellant's motion to set aside the judgment and for leave to withdraw plea of guilty and to enter a plea of not guilty to the affidavit herein. (2) The court erred in overruling appellant's motion in arrest of judgment.

[1] In Dobosky v. State, 183 Ind. 488, 109 N. E. 742, it is said:

“Whether one duly charged with a crime may withdraw a plea of guilty entered by him is a question committed to the sound judicial discretion that an impartial judge should exercise.On appeal for review, as the presumption is in favor of the ruling of the trial court, its denial of an application to be permitted to withdraw a plea of guilty and to plead not guilty and defend will, as a rule, be sustained, where the record discloses no ground for the application or where it appears from the record that the court's ruling was based on conflicting evidence which it was compelled to weigh to reach a conclusion.” Monahan v. State, 135 Ind. 216, 34 N. E. 967;Pattee v. State, 109 Ind. 545, 10 N. E. 421;Conover v. State, 86 Ind. 99.

In the instant case the ruling of the court was based on conflicting evidence, which the trial court was compelled to weigh to reach a conclusion. We cannot say that the court abused its discretion in overruling the motion to withdraw the plea of guilty.

[2] The appellant claims that the court erred in overruling appellant's motion in arrest of judgment, for the reason that the affidavit charges disjunctively that appellant did unlawfully “keep and have in his possession certain intoxicating liquors, with intent to unlawfully sell, barter, exchange, give away, furnish, or otherwise dispose of the same,” and that this renders the pleading uncertain. No other objection is pointed out.

The affidavit would have been bad on a motion to quash, because of the use of the...