Barnett v. State
| Decision Date | 15 December 1910 |
| Docket Number | 21,740 |
| Citation | 93 N.E. 226,175 Ind. 215 |
| Parties | Barnett v. The State of Indiana |
| Court | Indiana Supreme Court |
Rehearing Denied February 15, 1911.
From Hamilton Circuit Court; Meade Vestal, Judge.
Prosecution by The State of Indiana against Roscoe Barnett. From a judgment of conviction, defendant appeals.
Affirmed.
Christian & Christian, for appellant.
James Bingham, Attorney-General, A. G. Cavins, E. M. White and W H. Thompson, for the State.
Appellant was fined $ 100 for having made an unlawful sale of intoxicating liquor.
Errors have been assigned upon the overruling of his motions to quash the affidavit and for a new trial.
Appellant has filed a motion for a writ of certiorari, alleging merely "that the amended affidavit is omitted from the record and transcript," and "that the entry of the filing of the bill of exceptions is omitted from the transcript."
No attempt is made to show that there is any entry of the filing of the bill of exceptions, and, if so, when it was made or what it contains, or to show any of the contents of the amended affidavit.
The record does show that after a finding of guilty appellant made a motion in arrest of judgment, which was overruled, and subsequently that he made a motion for a new trial. The right to move for a new trial was cut off by the previous motion in arrest of judgment. Turner v. State (1910), ante, 1; Yazel v. State (1908), 170 Ind. 535, 84 N.E. 972; Gillespie v. State (1857), 9 Ind. 380; Bepley v. State (1853), 4 Ind. 264, 58 Am. Dec. 628.
It is manifest, therefore, that the bill of exceptions containing the evidence, if properly before us, would be of no value, since the motion for a new trial cannot be considered; and the entry of the filing of such bill, if duly made and properly certified, would not serve any useful purpose in this appeal.
We are cited to page two of the record for the affidavit upon which the conviction was had, where we find the following entry: "Comes now the State of Indiana, by C. M. Gentry, prosecuting attorney, and files amended affidavit herein, which amended affidavit reads as follows." An affidavit follows, which, omitting the formal parts, reads thus: "Ivan R. Goodwin, being duly sworn, upon his oath says that, as he is informed and believes, Roscoe Barnett, on or about the 8th day of February, A. D., 1910, at the county of Hamilton, in the State of Indiana, did then and there unlawfully sell to Louis Wien, one-half pint of whisky at and for the price of twenty-five cents, he, said Roscoe Barnett, not being then and there licensed under the laws of the State of Indiana to sell spirituous, vinous or malt liquors." This charge is clearly sufficient, and if appellant's motion to quash was addressed to it, the court correctly overruled it. Gillett, Crim. Law (2d ed.) § 576.
Appellant's affidavit for a writ of certiorari directly contradicts the record heretofore set out. The affidavit shown in appellant's...
To continue reading
Request your trial