Barnett v. State , No. 21,740.

Docket NºNo. 21,740.
Citation175 Ind. 215, 93 N.E. 226
Case DateDecember 15, 1910
CourtSupreme Court of Indiana

175 Ind. 215
93 N.E. 226

BARNETT
v.
STATE.

No. 21,740.1

Supreme Court of Indiana.

Dec. 15, 1910.


Appeal from Circuit Court, Hamilton County; Meade Vestal, Judge.

Roscoe Barnett was convicted of the unlawful selling of intoxicating liquors, and he appeals and applies for certiorari to correct the record. Writ denied, and judgment affirmed.

[93 N.E. 227]


Christian & Christian, for appellant.
James Bingham, A. G. Cavins, E. M. White, and W. H. Thompson, for the State.

MONTGOMERY, J.

Appellant was fined in the sum of $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 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 (No. 21,741, at this term) 93 N. E. 225;Yazel v. State, 170 Ind. 535, 539, 84 N. E. 972; Gillespie v. State, 9 Ind. 380; Bepley v. State, 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 2 of the record for the affidavit upon which the conviction was had, where we find the following entry: “Comes now 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...

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3 practice notes
  • Boos v. State , No. 22,548.
    • United States
    • Indiana Supreme Court of Indiana
    • 30 Abril 1914
    ...waives a motion for a new trial, in analogy to the rule in a civil action. Turner v. State, 175 Ind. 1, 93 N. E. 225;Barnett v. State, 175 Ind. 215, 93 N. E. 226. [4] Prior to the declaration of the rule in Henderson v. State (1878) 60 Ind. 296, it had been the rule that the sufficiency of ......
  • Earle v. State, No. 24216.
    • United States
    • Indiana Supreme Court of Indiana
    • 29 Enero 1924
    ...file the motion for a new trial. Page v. State (Ind. Sup.) 139 N. E. 143;Boos v. State, 181 Ind. 562, 105 N. E. 117;Barnett v. State, 175 Ind. 215, 93 N. E. 226;Hammer v. State, 173 Ind. 199, 89 N. E. 850, 24 L. R. A. (N. S.) 795, 140 Am. St. Rep. 248, 21 Ann. Cas. 1034. Judgment reversed, ......
  • Barnett v. State, 21,740
    • United States
    • Indiana Supreme Court of Indiana
    • 15 Diciembre 1910
    ...93 N.E. 226 175 Ind. 215 Barnett v. The State of Indiana No. 21,740Supreme Court of IndianaDecember 15, 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 ......
3 cases
  • Boos v. State , No. 22,548.
    • United States
    • Indiana Supreme Court of Indiana
    • 30 Abril 1914
    ...waives a motion for a new trial, in analogy to the rule in a civil action. Turner v. State, 175 Ind. 1, 93 N. E. 225;Barnett v. State, 175 Ind. 215, 93 N. E. 226. [4] Prior to the declaration of the rule in Henderson v. State (1878) 60 Ind. 296, it had been the rule that the sufficiency of ......
  • Earle v. State, No. 24216.
    • United States
    • Indiana Supreme Court of Indiana
    • 29 Enero 1924
    ...file the motion for a new trial. Page v. State (Ind. Sup.) 139 N. E. 143;Boos v. State, 181 Ind. 562, 105 N. E. 117;Barnett v. State, 175 Ind. 215, 93 N. E. 226;Hammer v. State, 173 Ind. 199, 89 N. E. 850, 24 L. R. A. (N. S.) 795, 140 Am. St. Rep. 248, 21 Ann. Cas. 1034. Judgment reversed, ......
  • Barnett v. State, 21,740
    • United States
    • Indiana Supreme Court of Indiana
    • 15 Diciembre 1910
    ...93 N.E. 226 175 Ind. 215 Barnett v. The State of Indiana No. 21,740Supreme Court of IndianaDecember 15, 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 ......

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