112 Ind. 140 | Ind. | 1887
The appellant prosecutes this appeal from a judgment^declaring him guilty of the misdemeanor of selling liquor to a person under twenty-one yeai’s of age.-
The evidence shows, without contradiction, that the person to whom the liquor was sold was not more than seventeen years old, and it also tends very strongly to show that the appellant had reason to believe, and did believe, that he was-not of the age of twenty-one years.
On the trial the court permitted the prosecuting attorney to read in evidence an affidavit of the appellant filed on a motion for a continuance. We perceive no error in this ruling. The admissions in such an affidavit were made, it is to be presumed, with care and deliberation, and they were made-under oath. Admissions so made are certainly as competent as oral admissions made to a clerk, a sheriff, or any other in
Statements in an affidavit for a continuance are not admitted, as counsel supposes, because they attack the general •character of the accused, but because they tend to prove or disprove some material fact, or to contradict a witness introduced by the accused. In this case the statements tended to contradict the statements of the appellant when on the witness stand, as well as statements of his brother who testified in his behalf.
Affidavits for a continuance are entirely unlike affidavits for a change of venue, and counsel goes very far astray in asserting their similarity. Affidavits of the former class are required to state material evidentiary facts, and when they are stated they are affirmed by the affiant to be true. He thus admits, in a very solemn manner, their truth, and this admission may be used against him. In affidavits for a change of venue no evidentiary facts are stated, and they can not, therefore, supply evidence to be used on a trial.
The act of an accused in making a sworn statement of a fact or facts that he expects to prove by a witness, and in stating that he can prove such fact or facts by no other witness, is a purely voluntary act, deliberately performed and Avith ample time for reflection. It is no doubt true that an accused may show that he was mistaken as to some or all of the statements contained in his affida\Tit; and so, too, he has a right to explain them if he can by competent evidence, but the statements are nevertheless admissions, and, as such, entitled to go to the jury.
There is nothing giving to the statements in an affidavit for a continuance a privilege; nor is there anything which impresses upon them any compulsory or confidential features. The affidavit is a paper belonging to the files, public in its character, and freely executed.
It was a material question whether the appellant acted in good faith and in the reasonable belief that the person to
There was no such misconduct on the part of the prosecuting attorney in the argument as will warrant a reversal. ■ It was proper for him to discuss the question of the appellant’s good faith, and even if it were granted that he was mistaken as to the inferences he drew from the evidence, we could not reverse.
Where counsel confine their discussion to the issues and the evidence there is no misconduct, although there may be much bad logic and many erroneous inferences. Proctor v. DeCamp, 83 Ind. 559; Heyl v. State, 109 Ind. 589; Boyle v. State, 105 Ind. 469; Thornton Juries and Instructions, section 458. But we can not say that the inferences of the prosecuting attorney were erroneous; on the contrary, we strongly incline to agree with him in his reasoning.
Judgment affirmed.
