Torphy v. State

Decision Date28 January 1919
Docket NumberNo. 23349.,23349.
Citation121 N.E. 659,188 Ind. 30
PartiesTORPHY v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Monroe County; Robert W. Miers, Judge.

On rehearing. Reversed, with instructions.

For former opinion, see 119 N. E. 1002.

Robert L. Mellen, of Bedford, and John P. O'Donnell, of Bloomington, for appellant.

Ele Stansbury, Atty. Gen., Dale F. Stansbury, of Indianapolis, and Elmer E. Hastings, of Washington, Ind., for the State.

WILLOUGHBY, J.

Appellant was convicted of the violation of section 8351, Burns 1914, and has appealed from the judgment of the circuit court on the grounds:

(1) That the court erred in refusing to grant a continuance of the cause.

(2) That appellant's motion for a new trial should have been sustained.

The latter motion contains numerous specifications, but those which are relied upon principally relate directly or indirectly to the ruling on the motion for a continuance. In his affidavit filed in support of that motion, appellant names five persons whose attendance at court on the day fixed for trial could not then be had on account of their absence from the state, and in one instance on account of severe illness.

The indictment charges appellant with unlawfully keeping, running, and operating a place in Lawrence county, Ind., where intoxicating liquors were sold, bartered, and given away in violation of the laws of the state of Indiana, and that he was then and there found unlawfully in possession of intoxicating liquor for the unlawful purpose of selling, bartering, and giving away the same in violation of the laws of said state; and in his affidavit appellant says:

“That the defendant herein is charged with keeping, running, and operating a place in Lawrence county, Ind., where intoxicating liquors were sold, bartered, and given away in violation of the laws of the state of Indiana, the charge having been filed on the 26th day of September, 1916; that the state will claim in the trial of said cause that said defendant had charge of the Ketcham Building on Sixteenth street in the city of Bedford at the times covered by said charge and kept intoxicating liquors therein for unlawful purposes and sold and bartered the same in violation of the law; and that numerous raids were made thereon by the officers of the city of Bedford, and will have, as this affiant is informed, three witnesses who will swear that they purchased intoxicating liquors therein at such times of defendant. Deponent further says that each of said absent witnesses will testify that they have been in and about said building during the times fixed by the state almost every day during the said period, and that they saw no intoxicating liquors therein so kept for illegal purposes, and that they saw no intoxicating liquors sold therein by said defendant during said period. Said witnesses will further testify that they were in said building at the time the state's witnesses claimed to have purchased intoxicating liquors and will testify that they did so purchase intoxicating liquors of said defendant, and that no such purchases were made.

To avoid a continuance, the prosecuting attorney admitted as true all of appellant's affidavit except that portion thereof which we have set out in italics, whereupon the motion was overruled.

Appellant now earnestly insists that where, in a criminal prosecution, the defendant files a sufficient affidavit in support of his motion for a continuance, the state must admit “all” the facts which the defendant claims he can prove by absent witnesses in order to avoid the continuance.

[1] When the defendant has made a proper affidavit for continuance on account of the absence of witnesses, the prosecuting attorney must, if he desires to prevent the continuance of the cause, admit the truth of the facts which the defendant in his affidavit for a continuance alleges that he can prove by the absent witnesses. Burns 1914, § 2089. This means that he shall admit all the material facts relevant to the issues, which in his affidavit he alleges he can prove by the absent witnesses. The statement that “said witnesses will further testify that they were in said building at the time the state's witnesses claimed to have purchased intoxicating liquors and will testify that they did so purchase intoxicating liquors of said defendant, and that no such purchases were made,” is a statement of fact material and relevant to the issues. If no sale was made, as said statement alleges, that would be some evidence favorable to appellant tending to show his innocence of the charge upon which he was being tried. The witnesses for the state were permitted to testify that they had been in said building on numerous occasions and purchased intoxicating liquors in less quantities than a quart at a time during the period covered by the prosecution in this case. It is evident then that such statement in said affidavit that no such sales were made as testified to by the witnesses for the state was a material statement of fact which the...

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3 cases
  • Vaughn v. State, 49S02-9204-CR-270
    • United States
    • Indiana Supreme Court
    • April 14, 1992
    ...should be granted. Walker v. State (1984), Ind., 471 N.E.2d 1089; Blume v. State (1963), 244 Ind. 121, 189 N.E.2d 568; Torphy v. State (1919), 188 Ind. 30, 121 N.E. 659. Other motions for continuance are in the purely discretionary category. Trial Rule 53.5; Works v. State (1977), 266 Ind. ......
  • Walker v. State, 183S6
    • United States
    • Indiana Supreme Court
    • December 17, 1984
    ...continuance. The "as a matter of right" argument is based upon Blume v. State, (1963) 244 Ind. 121, 189 N.E.2d 568 and Torphy v. State, (1919) 188 Ind. 30, 121 N.E. 659. A footnote in Blume cites to Torphy for authority to the proposition that a legally sufficient affidavit for continuance ......
  • Union Traction Co. of Indiana v. Berry
    • United States
    • Indiana Supreme Court
    • January 31, 1919
    ... ... Co. v. Rainbolt, 99 Ind. 551, the court said:The rule that there may be degrees of negligence has long ago been discarded in this state, and, when it is said that an occurrence came about through the slight negligence or gross negligence of another, it is, in either case, nothing more ... ...

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