Barnett v. State, 21,740

• Docket Nº: 21,740
• Citation: 93 N.E. 226, 175 Ind. 215
• Case Date: December 15, 1910
• Court: Supreme Court of Indiana

93 N.E. 226

175 Ind. 215

Barnett
v.
The State of Indiana

No. 21,740

Supreme Court of Indiana

December 15, 1910

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.

OPINION [93 N.E. 227]

[175 Ind. 216] Montgomery, J.

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.

[175 Ind. 217] 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...