177 N.E. 898 (Ind. 1931), 26,045, Cox v. State

Docket Nº:26,045
Citation:177 N.E. 898, 203 Ind. 544
Opinion Judge:Martin, C. J.
Party Name:Cox v. State of Indiana
Attorney:Montgomery & Montgomery, for appellant. James M. Ogden, Attorney-General, and Merl M. Wall, Assistant Attorney-General, for the State.
Judge Panel:Martin, C. J. Myers, J., absent.
Case Date:October 13, 1931
Court:Supreme Court of Indiana

Page 898

177 N.E. 898 (Ind. 1931)

203 Ind. 544



State of Indiana

No. 26,045

Supreme Court of Indiana

October 13, 1931

Rehearing denied June 10, 1932, Reported at: 203 Ind. 544 at 550.

1. CRIMINAL LAW---No Common-Law Crimes in Indiana.---There are no common-law crimes in this state. p. 549.

2. KIDNAPPING---As Defined under Present Statute---Not Limited by Former Statutes.---The fact that former kidnapping statutes required the taking of a person out of the state or from his place of residence cannot serve to limit the crime as it is defined under the present law which only requires the taking to be "from any place within this state" (Acts 1929, ch. 154, p. 477, 2426 Burns Supp. 1929). p. 549.

3. KIDNAPPING---Evidence Held Sufficient to Sustain Conviction.---Evidence showing that one accused of "kidnapping" forcibly carried away a child from the front yard of her playmate's home, where she was playing, to a point more than 90 feet down an alley was sufficient to sustain a conviction for kidnapping (2426 Burns Supp. 1929). p. 549.

4. CRIMINAL LAW---Constitutionality of Statute Defining Crime---How Presented on Appeal.---The question of the constitutionality of a statute defining a crime cannot be first presented on appeal by assigning it as error, but must be presented to the trial court by a motion to quash the indictment or affidavit or by a motion in arrest of judgment. p. 550.

5. CRIMINAL LAW---Unconstitutionality of Statute Defining Crime---Cannot be Presented by Motion for New Trial on Ground that Verdict is Contrary to Law.---The unconstitutionality of the statute on which a criminal prosecution is based cannot be presented by a motion for a new trial on the ground that the verdict is contrary to law. p. 551.

6. CRIMINAL LAW---Sufficiency of Indictment---How Questioned---Former Rule---Present Rule---Cannot be Questioned first in Supreme Court.---Formerly, the sufficiency of an indictment might be questioned for the first time in the Supreme Court, but, since the amendment of 89 of the Civil Code in 1911 (3, ch. 38, Acts 1911, 366 Burns 1926), the court holds that an indictment cannot be so questioned. p. 551.

7. CRIMINAL LAW---Appeal---Assignment of Error---That Indictment does not State Public Offense---Held not to Present any Question.---An assignment of error, on appeal from a conviction for a criminal offense, that the indictment does not state a public offense is not sufficient to present any question. p. 551.

8. CRIMINAL LAW---Appeal---Assignment of Error---That Statute on which Prosecution is Based is Unconstitutional---Presents no Question as to Sufficiency of Indictment.---An assign- [203 Ind. 545] ment of error that the statute on which a criminal prosecution is based is unconstitutional does not present any question as to the sufficiency of the indictment. p. 551.

9. CRIMINAL LAW---Constitutionality of Statute on which Prosecution is Based---Must be Questioned in Trial Court.---The constitutionality of the statute on which a criminal prosecution is based will not be considered on appeal unless its constitutionality was questioned in the trial court. p. 552.

10. CONSTITUTIONAL LAW---Statute Presumed to be Constitutional---Appellate Tribunal will Act on that Assumption.---A statute is presumed to be constitutional, and an appellate tribunal will act on that assumption where the parties in the...

To continue reading