Benadum v. State

• Decision Date: 09 December 1914
• Docket Number: No. 22639.,22639.
• Citation: 182 Ind. 510,107 N.E. 8
• Parties: BENADUM v. STATE.
• Court: Indiana Supreme Court

182 Ind. 510

107 N.E. 8

BENADUM

v.STATE.

No. 22639.

Supreme Court of Indiana.

Dec. 9, 1914.

Appeal from Circuit Court, Delaware County; W. A. Thompson, Judge pro tem.

Charles Benadum was convicted of violating the blind tiger law, and he appeals. Reversed, with instructions.

Geo. W. Cromer and Edward Templer, both of Muncie, Edward M. White and Alexander G. Cavins, both of Indianapolis, and Harry Long and Van L. Ogle, both of Muncie, for appellant. Thomas M. Honan, Atty. Gen., and Edwin Corr, of Bloomington, for the State.

SPENCER, J.

[1] This is an appeal from a judgment of conviction based on a violation, as charged, of section 8351, Burns 1914, commonly known as the “Blind Tiger” law. The only error assigned and relied on for reversal challenges the action of the court in overruling appellant's motion for a new trial. Appellee contends that no question is presented by this assignment for the reason that said motion was filed after an appeal had been taken and the cause thus removed from the Delaware circuit court. The record shows that the judgment herein was rendered on August 25, 1913, and on the same day appellant prayed an appeal to this court, which was granted and notice then given to the prosecuting attorney and to the clerk of the Delaware circuit court. Subsequently, on September 4, 1913, appellant filed a motion for a new trial, which motion was overruled on November 13, 1913. On November 22, 1913, appellant filed his transcript and assignment of errors with the clerk of this court, and attempted thus to perfect an appeal from the judgment rendered against him. Said attempted appeal, being cause No. 22549 in this court, was dismissed by appellant on April 28, 1914, for the reason that the same was prematurely taken, no notice having been served on the prosecuting attorney after the motion for a new trial was overruled and prior to the filing of the transcript in this court. While it is true that an appeal, properly perfected, removes a cause from the jurisdiction of the trial court and places it in the appellate tribunal, it is also true that, under the present statute governing appeals in criminal cases, no appeal is properly perfected until the required notices are given and the transcript and assignment of errors are filed in the office of the clerk of this court. Section 2217, Burns 1914. Although appellant prayed an appeal to this court on August 25, 1913, and on the same day gave notice to the prosecuting attorney and to the clerk of the trial court of his intention to take such appeal, yet he filed no transcript or assignment of errors in the office of the clerk of this court until November 22, 1913. Until that date the Delaware circuit court had jurisdiction to entertain and pass on appellant's motion for a new trial, and its ruling on said motion is now properly presented for review.

[2] Appellant, in said motion, alleges error on the part of the trial court in overruling his challenge for cause of three jurors, Johnson, Corn, and Nixon, who testified on their voir dire examination that they had...