104 Ind. 457 | Ind. | 1886
On the 30th day of June, 1885, the grand jury of Perry county returned an indictment against the appellant, Tobias Morris, for an assault and battery with intent to commit a rape on the person of one Mary Deorn, a girl abput fourteen years old. The appellant entered a plea of not guilty to the indictment and the ease was continued.
On the 4th day of November then next ensuing, the appellant withdrew his plea theretofore entered and moved to quash the indictment on account of some alleged irregularity in the organization of the grand jury which returned it.
Questions are made here only upon the refusal of the circuit court to postpone the trial until the following day, and upon the sufficiency of the evidence to sustain the verdict.
The several statutory provisions concerning the continuance of causes have reference as well to the temporary postponement of the trial of causes as to a continuance for the term, and when a cause is postponed, either until a later day in the same term, or until the next term, it is said to be, and is, in legal contemplation, continued. Bicknell Crim. Pr. 217; Moore Crim. Law, section 289; Hubbard v. State, 7 Ind. 160.
Motions to continue, as well as to postpone, are addressed to the sound discretion of the court, and neither a continu.ance nor a postponement can be demanded as a matter of right, except upon cause shown. Buskirk Pr. 224, 225; Moore Crim. Law, section 287.
The decision of a nisi prius court, upon any matter resting in its sound disci’etion, may be reviewed by this court, but such a decision will not be either reversed or disapproved, unless affirmatively shown to have been erroneous. Works Indiana Pr., section 738; Detro v. State, 4 Ind. 200; Jenks v. State, 39 Ind. 1; Pate v. Tait, 72 Ind. 450.
In this case the motion to postpone the trial was not supported either by affidavit or other affirmative showing, and
The appellant testified as a.witness in his own behalf. He ■did not deny that the prosecuting witness had been feloniously assaulted and maltreated as she claimed to have been, but based his defence upon the ground that his supposed ■connection with the offence was the result of a mistaken identity; that it was not he, but some' other person, who had •committed the offence with which he was so charged. There was evidence, nevertheless, tending very strongly to identify him as the guilty party in the assault and other violence which was committed upon the prosecuting witness.
There is consequently no sufficient reason for reversing the judgment upon the evidence.
The judgment is affirmed, with costs.