Plea in abatement and special plea in bar.

former conviction before a justice for the same offense, may introduce a transcript of the justice's record showing the defendant's conviction of the offense, though the transcript do not state that some person, present at the commission of the offense, was examined as a witness, etc. But whether the transcript is sufficient, prima facie, to sustain the defense, quære. The facts relative to the evidence given at the trial before the justice, may, in such case, be proved by parol. 4 Blackf. 548.

Assault and battery.-Indictment for an assault and battery. Plea, that before the commencement of the prosecution the defendant had been arrested on the warrant of a justice of the peace of the county for the charge set forth in the indictment; and that, after a full examination of the case, the justice had acquitted him of the offense. Held, on demurrer, that the plea was a good bar to the prosecution. 2 Blackf. 5.

The statute authorizing justices of the peace to punish trivial breaches of the peace by fine not exceeding three dollars, is not unconstitutional, and it is discretionary with the justice whether to try a charge of a breach of the peace himself, or to recognize the defendant to answer the same at the next term of the circuit court. Ibid.

Plea of former acquittal.

[Title, etc., as before.]

And the said A. B., in person, and by attorney, having heard the said indictment [or, information] read, saith, that the State of Indiana ought not further to prosecute the said indictment against the said A. B., because he saith that heretofore, to-wit: [here insert the record of the former acquittal, reciting the indictment, however, in the past tense, instead of the present tense, and reciting the remainder of the record also in the past tense, and then proceed thus:] as by the record thereof more fully and at large appears; which judgment still remains in full force and effect, and not in the least reversed or made void. And the said A. B. in fact saith that he, the said A. B., and the said A. B. so indicted and acquitted as last aforesaid, are one and the same person; and that the felony of which he, the said A. B., was so indicted and acquitted as aforesaid, and the felony of which he is now indicted, are one and the same felony. And this he, the said A. B., is ready to verify. Wherefore he prays judgment, and that he may be discharged. Bicknell's Crim. Pr. 120.

And the said [prosecuting attorney], who prosecutes the pleas of the state in this behalf, says that, by reason of anything in the plea above pleaded of the said A. B., the State of Indiana ought not to be precluded from prosecuting the said indictment against the said A. B., because he says there is not any record of the said supposed acquittal, in manner and form as the said A. B. hath in his said plea alleged. And this he, the said prosecutor, prays may be inquired of by the country, and the said A. B. doth the like. Bicknell's Crim. Pr. 121.

PARDON.

The form of this plea is like that of other pleas in bar in criminal cases, except that the pardon is specially set out and averred to have been under the seal of the state, and then the prayer is as follows:

By reason of which pardon the said A. B. prays that he may be discharged from the premises in said indictment specified. Bicknell's Crim. Pr. 124.

Fraud vitiates pardon.-When it may reasonably be inferred from the language of a pardon or remission, considered in connection with the record of the cause in which it was granted, that the executive was deceived or imposed upon by those procuring it, by false statements or an omission to state relevant facts, the pardon or remission is void. 5 lnd. 359.

SEC. 18. If a court shall not sit in any term, all matters depending therein shall stand continued until the next term. 2 R. S. 9.

SEC. 19. If, at the end of the term of any court, any matters depending therein are undetermined, the same shall stand continued until the next term.

Ibid.

Prior to the revised statutes of 1852, it was held that the rules

Continuance.

as to granting continuances were the same in civil and in criminal 8 Blackf. 281.

cases.

The civil code of 1852, and the amendments thereto, since made, contain two statutes as to continuances. 2 R. S. 164, 165. Secs. 322, 323, and the criminal code of 1852, contain nothing upon the subject.

The old law, therefore, as to continuance in criminal cases, by virtue of the general provisions by which the laws and usages of this state, relative to pleading and practice in criminal actions, not inconsistent with the code, as far as the same may operate in aid of the code, or to supply any omitted case, are continued in force. 2 R. S. 413, sec. 172. These former laws, as to continuances, are not found in any statute, but must be sought in the reports of decided cases. Bicknell's Crim. Pr. 217.

Civil code. The statute, in regard to continuances in civil cases, does not apply to state prosecutions. 6 Ind. 279. See 16 Id. 192; 26 Id. 30.

Discretion.-Granting or refusing a continuance is a matter within the sound discretion of the court. The propriety of granting or refusing it depends to a great extent upon the peculiar circumstances of the case. 4 Ind. 200. See 6 Id. 279; 16 Id. 192; 26 Id. 30.

Discretion may be abused.-The refusal of the circuit court to grant a continuance, though the motion is addressed to the discretion of the court, may be revised by the supreme court, but, unless the refusal was manifestly improper, the ruling will be sustained. 7 Ind. 338.

Record. Supreme court will not consider exception to ruling if exceptions not made part of record. 54 Ind. 413.

Illness of witness-No attachment.-Where, in a criminal action, an affidavit for a continuance shows that witnesses, who have been duly summoned, are prevented from attending court by sickness, it is proper to refuse to issue an attachment for them. The fact of the illness of the witnesses may he proved by the affidavit of the defendant, or of any one else having knowledge of the matter. 42 Ind. 244.

Cause of absence of witness not inquired into.-Where the defendant, in a criminal action, moving for a continuance on account of the absence of witnesses, shows the competency of the witnesses, the materiality of their testimony, that they have been duly and legally summoned, and the other facts especially required by the

Continuance.

statute, he is entitled to a continuance without regard to the cause of their absence. The court must decide the motion for a continuance upon the facts stated in the affidavit alone, accepting the same as true; and, on appeal, this court will not look at the evidence given on the trial, but to the affidavit alone. Ibid.

Diligence by defendant— What is not sufficient.-A person was indicted in June, and an application was made in September of the next year for a continuance of the case, on the ground that a material witness was absent, and the statement in the defendant's affidavit as to the residence of the witness, and the diligence to obtain his testimony, was a follows: "That he believes the said witness resides in Miami county, Indiana; that he caused a subpena to be issued and placed in the hands of a special messenger, who, under the order of this court, made an effort to serve the summons, but said summons has been returned 'not found;' it not being stated when the subpena was issued, and it not appearing when the defendant was arrested. Held, that the affidavit was not sufficient to entitle the defendant to a continuance. 42 Ind. 544.

Same. An application for the continuance of a criminal cause on account of the absence of a witness who was jointly indicted with the defendant, and was under bonds to appear for trial, was held to be insufficient because it did not show that any subpena had been taken out for the witness, and did not negative the idea that the prosecution against the witness had been continued to a future day. 28 Ind. 22.

Same. The prisoner, indicted for arson in the Marion circuit court, applied for a continuance of the cause, to procure the testimony of a witness residing in Cincinnati to his good character. Twenty-one days had elapsed between the period of the prisoner's arrest under the indictment and the application for the continuance, and he had meanwhile made no effort to obtain the testimony. There is a communication twice a day, between Indianapolis, the county-seat of Marion county, and Cincinnati, by railroad. Held, that the application was properly refused. 6 Ind. 490.

Same.-Indictment for forgery. A change of venue was taken from the Steuben to the De Kalb Circuit Court. The prisoner applied for a continuance on an affidavit alleging that A., B., and C. were material witnesses, etc.; that they resided in Steuben county; that he expected to prove by them that D. and E. two material witnesses, who were then in attendence to testify against him, were, at that time, persons of bad reputation, and ought not to be believed un

Continuance.

der oath; that the change of venue was granted on the preceding Wednesday, and that on the next day he caused a subpena to be issued for said witnesses by the clerk of the De Kalb Circuit Court, which was mailed to the sheriff of Steuben county, and received by him on Sunday last, and served on said witnesses on the next day; that the witnesses had not had sufficient time to be in attendance, but he believed he could procure their attendance at the then next term of the court; that he knew of no other witnesses by whom he could prove the same facts; and that the affidavit was not made for delay, etc. Held, that the affidavit was sufficient. 5 Ind. 533.

Postponement during progress of trial.-While a cause was being tried on an indictment for murder, and before the defense had closed, a material and competent witness for the defendant, who had been served with process, became seriously ill and unable to appear and testify; whereupon it was agreed, in open court, between the defendant and his counsel, and those engaged in the prosecution, that if the witness should be able to appear at any time before the cause was submitted to the jury, he should be allowed to testify; and if he should not be able to appear, then the defendant should have the same right to move for a postponement of the trial that he would have if the motion had been made before the close of the defense, and with like effect.

With this agreement, the parties proceeded until the rebutting evidence on the part of the state was closed, whereupon, the defendant's witness not yet being able to be present, a motion was made to postpone the trial for eight days, which motion was supported by affidavits showing the materiality of the facts expected to be proved by the witness, and that during the trial he had been. suddenly taken ill and could not, without great danger, leave his house, etc. Held, that it was error to refuse to postpone the trial. 39 Ind. 1.

Affidavit for absent witness to prove alibi.-An affidavit for a continuance in a criminal action, which stated that certain witnesses, whose names and residences were given, and upon whom, it was stated, process had been served, would prove the absence of the defendant from the place where the state would attempt to prove the commission of the crime, at the alleged time of its perpetration, and which contained an averment that the facts were true, and could not be so readily established by other evidence, and that the absence of the witnesses was not of his procurement, entitled the defendant to a continuance. 38 Ind. 277.