Buchta v. State, 29159

• Decision Date: 29 April 1955
• Docket Number: No. 29159,29159
• Citation: 126 N.E.2d 151,234 Ind. 295
• Parties: Herbert G. BUCHTA, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 151

126 N.E.2d 151

234 Ind. 295

Herbert G. BUCHTA, Appellant, v. STATE of Indiana, Appellee.

No. 29159.

Supreme Court of Indiana.

April 29, 1955.

Russell S. Armstrong, Ted Lockyear, Jr., Wilbur F. Dassel, Evansville, for appellant.

Edwin K. Steers, Atty. Gen., Richard M. Givan, Deputy Atty. Gen., for appellee.

EMMERT, Judge.

This is an appeal from a judgment on a verdict finding the appellant guilty of the second offense of operating a motor vehicle while under the influence of intoxicating liquor, for which he was fined $10 and ordered imprisoned in the Indiana State Prison for a term not less than one nor more than three years, under § 47-2001(b), Burns' 1952 Replacement. The error assigned here is the overruling of appellant's motion for a new trial.

The amended affidavit charged a prior conviction October 4, 1950, in the Martin Circuit Court, and that on December 31, 1952, in Warrick County on public highway #62 one mile west of Boonville, appellant operated on automobile while under the influence of intoxicating liquor. It is not necessary to set out the amended affidavit in full nor the verdict, and there was no error in overruling appellant's motion in arrest of judgment. There was no want of jurisdiction of the person or the subject matter, and the amended affidavit was sufficient to charge the offense under the statute, supra; therefore, it was properly overruled. Ewbank, Indiana Criminal Law (2d Ed.) § 706, p. 526, and authorities therein cited.

The evidence discloses that Bernard Nigg, an officer of the Indiana State Police, at about 4:30 P.M. the 31st day of December, 1952, saw appellant driving his automobile west toward Evansville on State road #62 about one mile west of Boonville, where appellant drove the car in a ditch. Officer Nigg arrested him for operating under the influence, and found a partly consumed bottle of whiskey in the front seat. Four of the witnesses who saw appellant a short time after the arrest testified that in their opinion he was drunk or intoxicated. There was evidence that he had been convicted of the prior offenses as charged in the amended affidavit. The verdict was sustained by sufficient evidence and was not contrary to law.

The motion for a new trial questioned the admission of certain exhibits introduced by the state, as well as certain oral testimony. However, the motion did not set forth verbatim or in substance the questions, the objections or the answers thereto, nor did it set forth in detail or in substance the exhibits and the objections thereto. The rule is well settled that such failure presents no error for consideration by this court on appeal. Boyle v. State, Ind., 125 N.E.2d 707; Ray v. State, Ind.1954, 120 N.E.2d 176; Flanagan,...