Alyea v. State , 198 Ind. 364 ( 1926 )

ON PETITION FOR REHEARING. In appellant's brief, he says that the only question he desires to present upon petition for rehearing is the ruling of the court upon the motion to be discharged on account of delay, and asks that this court give careful consideration to this question and consider the facts as disclosed by the record in this case.

Appellant claims that this court inadvertently failed to consider all of these facts in arriving at its conclusion that appellant fails to show facts which brings him within the provisions of the statute and that the opinion fails to disclose all of the facts shown by the record. He says the record is absolutely silent and fails to disclose any reason or excuse for failing to bring appellant to trial until the eighth term of court after he had been arrested and given bond.

The record shows that on April 3, 1923, being the fiftieth judicial day of the February term, 1923, of the Decatur Circuit Court, an affidavit was filed against the appellant, charging him with the sale of intoxicating liquor. The affidavit is set out on page two of the record and on page three of the record appears the following entry: "And now the court orders bench warrant issued for the arrest of said defendant which the clerk of this court accordingly issues and now the court fixes bail at $500."

The record fails to show that the appellant gave bail or entered into a recognizance of any kind. It is true that the transcript contains the copy of a verified motion by 6. defendant to be discharged on account of delay. In the motion, the appellant alleges that he was arrested by bench warrant issued by said Decatur Circuit Court, Decatur county, Indiana, and thereupon, at said time, said defendant duly entered into a continuing recognizance in said cause in the sum of $500 with surety duly approved by said Decatur Circuit Court, conditioned for the appearance of said defendant in said Decatur Circuit Court from day to day and term to term to answer said indictment and until said defendant should be finally discharged. The motion also alleges that said recognizance is the only recognizance ever entered into in said cause. There is no proof of the facts thus alleged in appellant's affidavit to be discharged. The record as we have said is silent on the subject and there is no bill of exceptions to show what proof, if any, was offered to support such allegations. The act of 1915, Acts 1915 p. 122, § 2332 Burns 1926, makes a motion a part of the record without a bill of exceptions but it does not require the court to take the allegations of fact in such motion as being true unless they have been shown to be true by evidence. Recitals of fact in a motion require proof the same as an allegation of fact in any other pleading or paper.

It further appears by the record in this case that on the filing of the motion of the appellant to be discharged on account of delay, the prosecuting attorney filed a verified answer 7. to such motion, and on the same day, the appellant filed a motion to strike out the verified answer filed by the state to defendant's motion to be discharged, and on the same day, the court overruled appellant's motion to strike out the verified answer of the state to defendant's motion to be discharged. And then the verified motion of defendant to be discharged on account of delay was submitted to the court and overruled, to which defendant at the time excepted. It does not appear from the record what evidence, if any, with the affidavits of the appellant and the prosecutor was submitted to the trial court, but upon such submission, the trial court found in effect that the alleged facts stated in appellant's motion to be discharged were untrue, and there being nothing in the record which affirmatively shows that the trial court erred in such ruling, the ruling must be presumed by this court to be correct.Woodward v. State (1910), 174 Ind. 743, 93 N.E. 169; Elliott, Appellate Procedure § 710.

The appellant claims that the decision of this court ignores the former decision of the court in the case of State v. Kuhn (1900), 154 Ind. 450. The appellant is mistaken in his contention. State v. Kuhn, supra, was an appeal from the decision of the trial court which held that the facts stated in the defendant's application to be discharged in that case were true, and this court refused to reverse the decision of the trial court.

In this court, the presumption is in favor of the correctness of the rulings and judgment of the trial court and this presumption continues until overthrown by an affirmative 8. showing on the part of the party claiming error. Ewbank's Manual (2d ed.) § 198.

The appellant has not brought himself within the statute, under which he seeks relief. Petition for rehearing denied.

Myers, C.J., not participating.