135 Ind. 216, 219, 34 N. E. 967; Dobosky v. State (1915) 183 Ind. 488, 491, 109 N. E. 742; Atkinson v. State (1920) 190 Ind. 1, 6, 128 N. E. 433; Rowe v. State (1921) 191 Ind. 536, 133 N. E. 2; Carr v. State (1924, Ind. Sup.) 142 N. E. 378; Blackburn v. State (1924, Ind. Sup.) 145 N. E. 486. explained to him his right to a trial by jury | 554, 558, 18 N. E. 42; Monahan v. State (1893) and that they conferred concerning the advisability of same; that defendant did not wish a jury trial for the reason that he felt he would be found guilty and could not then appeal to the court for leniency; that defendant hoped to get a suspended sentence, and instructed his attorney to enter a plea of guilty, well knowing that the court must pass sentence of one to five years imprisonment; and that after sentence was passed defendant attempted to employ him to take an appeal to the Supreme Court for the sole purpose of delay; and that he refused to accept such employment. The counter affidavit of Harold E. Stiles shows that he was an attorney at law of Gary; that he had been acquainted with James A. Sweeney for many years; that on or about April 10, 1924, he accompanied Sweeney and a gentleman introduced to him as Nick Lamick from Gary to Crown Point and return; that Lamick could speak the English language, and that he talked to him about his case and heard said Sweeney talking to him, all of which conversations were carried on in the English language. [2] The denial of an application to withdraw a plea of guilty will generally be sustained on appeal, where the record discloses no ground for the application, or where it appears that the ruling was based on conflicting evidence, which the court was compelled to weigh to reach a conclusion. Dobosky v. State, supra; Rowe v. State, supra. [3] Appellant's supporting affidavit states that he entered a plea of guilty under the belief that he would receive a light jail sentence. It is not claimed by him that this belief was induced by any statement or act of the judge or the deputy prosecuting attorney, and his attorney states upon oath that defendant entered a plea of guilty knowing what the sentence would be. It was held in People v. Manriquez, 188 Cal. 602, 206 P. 63, 20 A. L. R. 1441, that if one believed that by pleading guilty his punishment would be lighter than would otherwise be inflicted, that would be no ground for the exercise of discretion in permitting withdrawal of the plea when the belief proved to be unfounded. And in Monahan v. State, supra, this court said: The counter affidavit of Floyd S. Draper states that he was a deputy prosecuting attorney employed in the Lake criminal court; that he was present when the appellant appeared in person and by his attorney waived arraignment and pleaded guilty; that the attorney for defendant requested the court to suspend prison sentence; that he stated to the court what facts the state was in posi-may stand where the punishment pleases the "We cannot adopt a rule that pleas of guilty tion to prove concerning the defendant's criminal, but may not stand if he is displeased guilt, and that the court intimated that the and will deny the guilt he has already conprison sentence could not be suspended; that fessed." no request was then made for permission to withdraw the plea of guilty; that during all of said time defendant was present in open court; and that at no time did it appear that the services of an interpreter were necessary or proper. [1] Where it appears that the defendant, on arraignment upon an indictment or affidavit charging him with a felony, voluntarily enters as his plea to such indictment or affidavit that he is guilty as therein charged, his subsequent application to the court for leave to withdraw such plea is addressed to the sound discretion of the trial court, and, unless there appears an abuse of such discretion, the Supreme Court will not interfere with its exercise. Conover v. State (1882) 86 Ind. 99, 100; Myers v. State (1888) 115 Ind. Although appellant stated otherwise, there was proof from the counter affidavits that he could speak the English language; that the seriousness of the offense with which he was charged and the penalty therefor had been explained to him; that he had been informed that he could have trial by jury if desired; and that no interpreter was necessary. And appellant did not claim in his supporting affidavit that he had a good and meritorious defense to the charge upon which he was being prosecuted. The evidence was conflicting and the court relied upon the counter affidavits rather than the affidavit of appellant. We hold that, in denying appellant's motion, the court did not abuse its discretion. Judgment affirmed. (147 N.E.) MARTIN v. NEWLAND, Sheriff, et al. (Supreme Court of Indiana. March 31, 1925.) 1. Arrest 66-Warrant by court of foreign state ineffectual, unless supported by one issued by proper officer of Indiana. A warrant issued by a court in Illinois has no extraterritorial effect, and confers no authority to arrest and imprison a person in Indiana without a warrant issued by court or other proper officer of Indiana. 2. Habeas corpus 77, 80-Sheriff's return to habeas corpus by alleged fugitive should set out requisition and warrant, but court may permit amendment if return insufficient. Under Burns' Ann. St. 1914, § 1173, subd. 2, a sheriff's return to an application by alleged fugitive for habeas corpus should set out requisition issued by court of demanding state and warrant issued by Governor of Indiana pursuant thereto as part of his return and produce original in court, but if he failed to do so, under section 1174, trial court could permit amendment of writ. 3. Habeas corpus 77-Sheriff's return to application for habeas corpus by alleged fugitive held insufficient. Where sheriff's return to petition by alleged fugitive for habeas corpus, directed against sheriff holding such petitioner in custody, expressly averred that petitioner was held in custody under a warrant issued by court in foreign state, but failed to set out requisition issued by such court, or the warrant for petitioner's arrest issued by Governor of Indiana pursuant to such requisition, held. that such return was insufficient. 4. Habeas corpus 109-Identifying alleged fugitive as accused person, and ordering her to be delivered to agent of demanding state, held proper. On application for habeas corpus by alleged fugitive from justice for discharge from custody of sheriff, if trial court properly adjudged that petitioner was not entitled to be discharged, but should be returned to custody of sheriff, held that, in view of Burns' Ann. St. 1914, § 1894, its action in proceeding to identify petitioner as accused person and ordering her delivered up to agent of demanding state was proper. county, and Joseph Mallow, claiming to be an agent of the state of Illinois, were unlawfully imprisoning her without right; that they were doing so under claim of authority of "a pretended writ issued by the Governor of the state of Indiana upon an alleged and pretended requisition from the Governor of the state of Illinois, which * charges that this petitioner is a fugitive from justice from said state of Illinois," but that the alleged acts charged by the requisition to have been done by petitioner did not consti * tute a criminal offense under the laws of Illinois; that the requisition did not purport to charge that she was guilty of treason or murder; and that the court in which the affidavit was filed, that issued the warrant on which the requisition was based, was not a court of the state of Illinois, and that the judges of that court were not magistrates of the state of Illinois. No objection was made to the sufficiency of the petition, and a writ was issued, to which each defendant made a return, verified by his oath. Exceptions to the return of each defendant were overruled, and appellant excepted. And upon her refusal to plead further, the court made a finding that each return was in all things petitioner be returned to the custody of the sufficient, and entered a judgment that the sheriff. The alleged agent of the state of Illinois denied that he was then restraining the petitioner in any way, but asserted that he was "an agent designated by the Governor of the state of Illinois to return said Agnes M. Martin to the state of Illinois" to answer a criminal charge against her there; that she was in the custody of the sheriff, only, and. "that he will take the custody of said Agnes M. Martin by virtue of the warrant issued the Governor of the state of Indi ana, and designating him as agent, as soon as she is turned over to him by the sheriff of Vermillion county and by order of the judge of the Vermillion circuit court." And afterward the court found "that said petitioner is not in the custody of the defendant, Joseph Mallow, and is not unlawfully restrained of her liberty by him." No question is presented as to the sufficiency or Appeal from Circuit Court, Vermillion insufficiency of this return, and, as a general County; Wm. C. Wait, Judge. denial that defendant Mallow was doing any of the acts complained of, it seems to be sufficient. [1] The sheriff made a return that as such sheriff he was holding the petitioner under Application for habeas corpus by Agnes M. Martin against Harry Newland, Sheriff, and another. From a judgment directing petitioner's return to custody of sheriff, petition-restraint "lawfully and by virtue of a warer appeals. Reversed, with directions. H. B. Aikman, W. Bert Conley, and Geo. D. Sunkel, all of Newport, for appellant. EWBANK, J. Appellant filed a petition for a writ of habeas corpus, alleging that Harry Newland, the sheriff of Vermillion rant for arrest and examination issued out of the municipal court of Chicago, Cook county, state of Illinois," in a certain prosecution against her, upon an affidavit set out with the return, which charged that the petitioner falsely and feloniously forged the signature of affiant to a certain check on a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes bank for $125, with the intent to cheat and iff, which not only failed to set them out, defraud affiant," a copy of which said order | but expressly averred that the petitioner of arrest is filed with this answer (return) was held in custody under a warrant issued and the original of which he herewith pro- by a court in Illinois. The return by the duces, and upon the authority of which he sheriff was insufficient, and it was error to made the arrest of said Agnes M. Martin, overrule appellant's exceptions thereto. and by virtue of which she is held and imprisoned." And the warrant set out with this return purported to have been issued by the municipal court of Chicago, on behalf of the people of the state of Illinois, by order of a judge of that court, upon an affidavit being filed which charged petitioner with having forged a check, as stated above, and was authenticated by the certificates of the chief justice and clerk of that court, as provided by law (sections 470, 494, Burns' 1914; sections 454, 472, R. S. 1881). Of course a warrant issued by a court in Illinois could not have any extraterritorial effect, and conferred no authority to arrest and imprison the petitioner in Indiana, without a warrant issued by a court or other proper officer of the state of Indiana. [2] The requisition of the Governor of Illinois and the warrant issued thereon by the Governor of Indiana, referred to in the petition by which this action was commenced. and in the return by Mallow, were not set out with the sheriff's return, nor even mentioned therein, and do not appear anywhere in the record. The trial court added to its judgment, directing that the petitioner be returned to the custody of the sheriff, an order that the sheriff "deliver her over to the custody of said Joseph Mallow, agent for the state of Illinois," which indicates that a requisition was produced in court by somebody, and that the trial court did not consider it a mere "pretended requisition," as it was characterized by appellant's petition. If there really was a proper requisition issued on a showing that the petitioner was duly charged with the crime of forgery in the state of Illinois, and that a warrant for her arrest had been duly issued by the municipal court of Chicago, but that she had escaped arrest by fleeing to Indiana, and if the sheriff held a warrant for her arrest, issued by the Governor of Indiana pursuant to the requisition, as the petition stated, the statute required that the sheriff should set out such requisition and warrant as parts of his return, and produce the original in court. Section 1173, subd. 2, Burns' 1914; section 1116, R. S. 1881. And having failed to do so, the trial court had authority to permit an amendment of the return. Section 1174, Burns' 1914; section 1117, R. S. 1881. [3] But mere references in the petition to a "pretended requisition" and warrant, as being in existence, and a mere reference in the return of Mallow to what he expected to do under authority of that warrant, cannot cure the defects in a return by the sher [4] Appellant also complains of the action of the trial court in proceeding to identify petitioner as the accused person and ordering her delivered up to the agent of the state of Illinois, after he had adjudged that she was not entitled to be discharged, but should be returned to the custody of the sheriff. But if the judgment refusing to discharge her and ordering her remanded to the sheriff had not been erroneous, we fail to perceive any irregularity in obtaining from the court at that time, a finding as to her identity, and an order that she be delivered up for transportation back to the state from which the requisition issued. Section 1894, Burns' 1914; section 27, c. 169, Acts 1905, p. 589. For the error in overruling appellant's exceptions to the sheriff's return, the judgment is reversed, with directions to permit an amendment of such return, if desired, and for further proceedings not inconsistent with this opinion. ILLINOIS CENT. R. Co. v. HOWARD.* (No. 24243.) (Supreme Court of Indiana. April 1, 1925.) 1. Evidence 142(1)-Price paid for other lands similarly situated competent on question of value of lands taken in condemnation proceedings. In condemnation proceedings, evidence of price paid by way of voluntary sale and purchase, near time lands were appropriated, for other lands similarly situated in immediate neighborhood, is competent on question of value of lands taken. 2. Evidence 113(11)-Owner's profits held incompetent as proof of market value of property taken in condemnation proceedings. In condemnation proceedings, evidence that owner's business had been earning profits of $6,000 per year was incompetent as proof of market value of property on which business was located, and could not be considered as basis for computing or ascertaining such value. 3. Eminent domain 262 (5)-Erroneous admission of evidence held not cured by instruction. In condemnation proceedings, erroneous admission of evidence that owner's business had been earning profits of $6,000 per year, as For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes - (147 N.E.) Appeal from Circuit Court, Shelby County; | the award of damages by the appraisers had Alonzo Blair, Judge. been for the correct amount. (a) Upon the trial of the case appellant offered to intro: duce evidence that only seven months before the appropriation of appellee's land a wit Action to condemn real estate by the Illinois Central Railroad Company against Michael E. Howard. Judgment assessing damages was rendered for defendant, and plain-ness had purchased for $3,750.00 a lot shown tiff appeals. Reversed, with directions. to be 31 feet wide, extending through from the street to the alley, that was in the same block, only 381⁄2 feet south of appellee's prop Ed. K. Adams, of Shelbyville, Hays & Hays, of Sullivan, and J. Olias Vanier, oferty. But an objection by appellee that “you Indianapolis, for appellant. Thos. D. McGee and Bachelder & Bachelder, all of Indianapolis, Wray & Sullivan, of Shelbyville, and Eph Inman, of Indianapolis, for appellee. EWBANK, J. Appellee owned a lot in the city of Indianapolis, adjoining the present location of the elevated railroad tracks on the south, two squares west of the Union Station, the northwest corner of his lot extending almost to the structure on which appellant's tracks have been elevated. This lot was 38 feet 6 inches wide along the west side of Senate avenue, running back the same width 110 feet to a 10-foot alley in the rear, which was open up to appellee's prop erty from the south, but was closed from thence northward. A one-story frame building 80 feet 9 inches long, and 36 feet 6 inches wide, covered the east end of the lot, except a narrow strip along the north side. There was a vacant space in the rear, 29 feet 3 inches long, across the entire width of the lot. The building had been used as a machine shop by appellee for more than 30 years, and in it he had the necessary machinery suitable for that purpose. The vacant space behind the building was sometimes used as a place to drive in with a dray and turn around when delivering heavy machinery at the shop for the purpose of having it repaired. Appellant had located its elevated tracks on some adjoining property in a curved line past and near the northwest corner of appellee's lot, and had appropriated as part of its right of way on which to build an embankment, if that should become resirable, a triangular piece off the northwest corner of the vacant space behind appellee's building, 20 feet wide along the alley at the west end and running 29 feet east along the north boundary of the lot, tapering to a point near the northwest corner of appellee's building. The tract appropriated contained 290 square feet, which was a little more than one-fourth of the vacant space, or "yard," behind the building, and a little more than one-fourteenth of the entire lot. The only pleading shown by the transcript consisted of a complaint describing appellee's lot and specifying the part of it sought to be appropriated, which it alleged was needed by appellant as part of the right of way on which to construct elevated tracks, and exceptions by each of the parties denying that have no right to go into what has been paid for other property" was sustained, and the evidence was excluded. (b) When testifying as a witness, appellee was asked by his counsel what were the profits from his business in 1916, the year the tract in question was appropriated, and over an objection and exception by appellant he testified that they were $6,000; and being asked what the net profits averaged prior to 1916, he was permitted, over a like objection and exception, to answer that his net profits had averaged $6,000 a year for the past eleven years. The jury returned a verdict in favor of appellee for $9,000 damages, and judgment was rendered in his favor against appellant for that amount. Each of the rulings admitting and excluding evidence, as above set out, was specified as a reason for asking a new trial, and overruling the motion for a new trial is assigned as error. [1] The great weight of authority holds that evidence of the price paid, by way of a voluntary sale and purchase near the time the lands were appropriated, for other lands similarly situated in the immediate neighborhood, is competent on the question on the value of the lands taken. Pierce v. Boston, 164 Mass. 92, 41 N. E. 229; Loloff v. Sterling, 31 Colo. 102, 106, 71 P. 1113; Smith v. Sanitary Dist., 260 Ill. 453, 103 N. E. 254; Music v. Big Sandy, etc., R. Co., 163 Ky. 628, 174 S. W. 44, Ann. Cas. 1916E, 689; St. Louis, etc., R. Co. v. Clark, 121 Mo. 169, 25 S. W. 192, 906, 26 L. R. A. 751; Lewis, Eminent Domain (3d Ed.) § 662; Wigmore, Evidence (2d Ed.) § 463; Jones, Evidence (2d Ed.) § 168; Sutherland, Damages (4th Ed.) § 1089, p. 4134. See Authorities collected in 22 Corpus Juris, 760. This rule was impliedly adopted by the Supreme Court of Indiana, a dozen years ago, holding that evidence of forced sales by way of the compromise of condemnation suits was not admissible because "they are affected by an element that does not enter into sales made in the ordinary course of business," and citing many authorities which stated that principle as an exception to the general rule above recited as to when proof of voluntary sales is admissible. Cleveland, etc., R. Co. v. Smith, 177 Ind. 524, 551, 552, 97 N. E. 164. We think the better reason as well as the weight of authority, is in favor of this general rule, subject to certain exceptions that have no application to the facts of the case at bar. The trial court erred in sustaining the objection, as set out above, to the offered evidence of the price paid at such a sale. [2, 3] Appellant's second contention is that the court erred in admitting evidence that appellee's business had been earning profits of $6,000 per year. The authorities are almost, if not quite, unanimous in holding that evidence of the profits derived from a business conducted on property taken by condemnation proceedings is not competent as proof of the market value of such property and cannot be considered as a basis for computing or ascertaining such value. The extent to which the income arises out of the property itself, is uncertain; the capital invested, the business capacity and skill of the owner, the adaptability of the property to the business, the business conditions obtaining, and other matters having little or no relation to what the property would sell for on the market, all affecting the amount of profits that may be realized. Gauley & Eastern R. Co. v. Conley, 84 W. Va. 489, 100 S. E. 290, 7 A. L. R. 157; San Diego, etc., Co. v. Neale, 88 Cal. 50, 25 P. 977, 11 L. R. A. 604; Illinois Central R. Co. v. Village of Lostant, 167 Ill. 85, 47 N. E. 62; Brackett v. Commonwealth, 223 Mass. 119, 111 N. E. 1036, Ann. Cas. 1918B, 863; Brainerd v. State, 74 Misc. Rep. 100, 131 N. Y. S. 221; Fox v. Philadelphia, etc., R. Co., 215 Pa. 506, 64 A. 729, 114 Am. St. Rep. 979; note 7 A. L. R. 164; note Ann. Cas. 1918B, 869. And in a proceeding to condemn the possible future right to build an embankment encroaching on a small corner of a vacant space behind a one-story frame building which had housed a machine shop for 30 years, the success of the business and the profits it had earned would not necessarily bear any relation to the price for which the lot and the old frame building would sell in the market, or to the market value of the little corner that was cut off the lot, or to the damage thereby done to the property not taken. It was error to admit for the purpose stated the evidence as to the annual profits from the business. The court gave an instruction stating that the net earnings or profits of the business, concerning which testimony had been introduced, must not be regarded as a measure of defendant's (appellee's) damages, but that "such evidence was admitted by the court for the sole purpose of aiding you (the jury) in determining the value of the defendant's property, * * and must be considered by you for such purpose only." Appellee seems to rely on this instruction as nullifying the effect of the error committed by admitting the evidence under consideration. But the instruction accentuated and emphasized, instead of curing, such error, expressly telling the jury that the evidence as to profits received from the business should be considered for a purpose for which it was not competent. Other questions are discussed by counsel in their briefs, but probably they will not arise on a retrial of the case. For the errors pointed out the judgment must be reversed. The judgment is reversed, with directions to grant a new trial. ALYEA v. STATE. (No. 24453.) (Supreme Court of Indiana. April 1, 1925.) 1. Statutes 211-Title liberally construed to sustain legislative intent and constitutionality of act. Title of act is given liberal construction, if necessary to sustain legislative intent and to hold it constitutional. 2. Statutes 114(6)-Statute defining common nuisance in relation to intoxicating liquor and prescribing penalty held valid and within title to act. Prohibition Law, § 20, defining common nuisance in relation to intoxicating liquors, and prescribing penalty therefor, is germane to other parts of chapter, and is not void under Const. art. 4, § 19, because not specifically mentioned in title. 3. Intoxicating liquors 143-Not necessary that premises alleged to be common nuisance be operated in disorderly manner. Under Prohibition Law, § 20, it is not necessary that premises alleged to be common nuisance be operated in disorderly manner. mere operating of place where intoxicating liquors are sold being sufficient. 4. Indictment and information 65 - Affidavit charging maintenance of common nuisance need only allege ultimate facts. Affidavit charging maintenance of common nuisance in violation of Prohibition Law. § 20, need only allege ultimate and not evidentiary facts, such as kind or quantity of liquor dispensed, persons to whom it was dispensed, or consideration received. 5. Indictment and information 125(31) — Affidavit charging maintenance of common nuisance held not invalid as charging more than one offense. Affidavit charging maintenance or assisting tion of Prohibition Law, § 20, held not invalid, in maintenance of common nuisance in violaas charging more than one offense, because it charged various acts any one of which constituted offense charged. 6. Intoxicating liquors 239 (8)-Instruction relating to maintaining common nuisance held not misleading. Instruction in prosecution for maintaining common nuisance in violation of Prohibition Law, § 20, that burden is on state to prove accused's guilt beyond reasonable doubt as to one or other of offenses defined, held not mis For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |