De LaTour v. State
| Decision Date | 03 April 1929 |
| Docket Number | 25,550 |
| Citation | 165 N.E. 753,201 Ind. 14 |
| Parties | De LaTour v. State of Indiana |
| Court | Indiana Supreme Court |
1. CRIMINAL LAW---Motion to Quash---Review of Ruling---How Presented on Appeal.---A motion to quash the indictment or affidavit, not being a part of the trial, any error in ruling thereon cannot be questioned by a motion for a new trial, but can only be presented on appeal by a direct assignment of error. p. 15.
2. CRIMINAL LAW---Appeal---Appellant's Brief---Admission of Evidence.---Alleged errors in the admission of evidence will not be reviewed on appeal where appellant has not complied with Rule 22 Supreme Court, which requires him to set out a concise statement of as much of the record as fully presents every error relied on. p. 15.
3. APPEAL---Briefs---Insufficiency of Evidence---Recital of Evidence Necessary.---Under Rule 22 of the Supreme Court, if the insufficiency of the evidence to sustain the verdict or finding is presented for review on appeal, appellant's brief must contain a recital of the evidence in narrative form so as to present the substance clearly and concisely. p 15.
4. CRIMINAL LAW---Constitutionality of Statute Defining Offense---How Presented on Appeal.---The unconstitutionality of the statute under which the defendant is being prosecuted cannot be presented on appeal by a motion for a new trial on the ground that the verdict or finding is contrary to law but such question can only be presented by a motion to quash the indictment or affidavit or by a motion in arrest of the judgment. p. 16.
From Marion Criminal Court (62,249); James A. Collins, Judge.
Maurice De LaTour was convicted of arson in the second degree, and of being an habitual criminal, and he appealed.
Affirmed.
H. B Pike, for appellant.
Arthur L. Gilliom, Attorney-General, and Harry L. Gause, Depty Attorney-General, for the State.
This is an appeal in a criminal cause, in which, in the criminal court, it was charged by affidavit that the appellant, on or about June 22, 1927, at and in the county of Marion and State of Indiana, did then and there unlawfully, feloniously, wilfully and maliciously set fire to and burn a certain church of the value of $ 35,000, and further alleged that the appellant had been three times formerly convicted, sentenced and imprisoned for felony. He was tried by a jury and found guilty of the crime of arson in the second degree and of being an habitual criminal. The judgment was that, for the crime of arson in the second degree, he be imprisoned in the Indiana State Prison for a term of not less than one nor more than 10 years, and that, as an habitual criminal, he be imprisoned in said Indiana State Prison for life.
On appeal, he has assigned as error that the court erred in overruling his motion for a new trial. In this motion for a new trial, he has stated six causes for same. The first cause has been waived.
The second cause is that the court erred in overruling the defendant's motion to quash the affidavit. This alleged error can be presented only by a direct assignment of error. A motion to quash is no part of the trial upon the merits and cannot be presented for consideration, upon appeal, by a motion for a new trial. Smurr v. State (1883), 88 Ind. 504; Hunt v. State (1921), 191 Ind. 406, 133 N.E. 8: Utley v. State (1924), 194 Ind. 186, 142 N.E. 377; Bond v. State (1927), 199 Ind. 484, 158 N.E. 241; Moore v. State (1927), 199 Ind. 578, 159 N.E. 154; Ewbank, Manual of Practice (2d ed.) § 39.
The third and fourth causes are based on alleged errors in admission of evidence, and the sixth cause is that the verdict is not sustained by sufficient evidence. The appellant has not complied with Rule 22 of this court as to the evidence, which provides: The brief of appellant shall contain a short and clear statement disclosing a concise statement of as much of the record as fully presents every error and exception relied on, referring to the pages and...
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