Walker v. State

• Citation: 36 N.E. 356,136 Ind. 663
• Parties: WALKER v. STATE.
• Decision Date: 16 February 1894
• Court: Supreme Court of Indiana

136 Ind. 663
36 N.E. 356

WALKER
v.
STATE.

Supreme Court of Indiana.

Feb. 16, 1894.

Appeal from circuit court, Henry county; E. H. Bundy, Judge.

Abe Walker was convicted of an assault and battery with intent to commit the crime of murder, and he appeals. Affirmed.

M. E. Forkner and Hord & Adams, for appellant. A. G. Smith, W. O. Barnard, and Frank E. Beach, for the State.

COFFEY, J.

On the 19th day of September, 1893, the appellant and one Stephen E. Perkins were jointly indicted in the Henry circuit court, in which indictment they were charged with assault and battery upon the person of one Alice Elliott, with the felonious intent to commit the crime of murder. The appellant sought to obtain a change of venue from the Henry circuit court upon the ground that there was such a prejudice against him in the county as would preclude him from obtaining a fair trial, but the court overruled his motion. In this ruling we think there is no available error. The question as to whether a change of venue shall be granted in a case like this rests in the sound discretion of the trial court, and this court will not interfere with such discretion unless it affirmatively appears that it has been abused, to the injury of the party complaining. Griffith v. State, 12 Ind. 548;Fahnestock v. State, 23 Ind. 231;Merrick v. State, 63 Ind. 327;Spittorff v. State, 108 Ind. 171, 8 N. E. 911. We are not able to say that it affirmatively appears from the record in this case that the circuit court abused its discretion in refusing to grant the appellant a change of venue from the Henry circuit court. The appellant also applied for a continuance of his cause until the next term of the court in order that public sentiment and excitement should be allowed to settle down, alleging that at the time of the application the public excitement against him was such that he could not have a fair and impartial trial. The court overruled his motion, and he excepted. The cause assigned for a continuance in this case is not one of the causes prescribed by statute. Whether a continuance should be granted on account of public excitement we think rests in the discretion of the trial court. If satisfied that a defendant could not have a fair and impartial trial, on account of public excitement against him, the trial court would doubtless postpone the hearing until there was good reason to believe that an impartial hearing could be secured. But the court in which the cause is pending can much better determine the necessity for a postponement than this court, and it should require a very strong showing to induce an appellate court to interfere with the rulings of the trial court on a question

[36 N.E. 357]

of this character. We do not think there is anything in this record which would enable us to say that the Henry circuit court erred in refusing the application of the appellant for a continuance on the ground stated in his application.

A trial of the cause by a jury resulted in a verdict finding the appellant guilty as charged, upon...