Butler v. State
| Decision Date | 04 April 1945 |
| Docket Number | No. 28034.,28034. |
| Citation | 223 Ind. 260,60 N.E.2d 137 |
| Parties | BUTLER et al. v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Merle Butler and another were convicted of fornication, and they appeal.
Judgment affirmed.Appeal from Allen Circuit Court; William H. Schannen, Judge.
Robert A. Buhler, of Fort Wayne, for appellants.
James A. Emmert, Atty. Gen., Frank Hamilton, First Deputy Atty. Gen., and Frank E. Coughlin, Deputy Atty. Gen., for appellee.
The appellants were jointly tried and convicted in the City Court of the city of Fort Wayne upon a charge of fornication. They appealed to the Allen Circuit Court where, upon trial, they were again convicted, and from which conviction this appeal is prosecuted. The questions presented arise upon the action of the court in overruling the motion for a new trial.
Six causes are stated in the motion for new trial. One of the causes was that a new trial should have been granted for the reason that appellants were surprised by certain testimony of the State's witness, Leota Pearl Wells. This cause can not be reviewed, as it is not properly presented. Appellants' statements with regard to this testimony, and supporting affidavits with regard to new evidence which could be presented on retrial, appear only in the verified motion for a new trial. ‘It has been repeatedly decided, and it is well settled, that affidavits supporting a motion for a new trial can only be brought into the record by a bill of exceptions, and that the motion for a new trial, though itself a part of the record, ‘does not constitute evidence of the truth of the alleged causes for the motion, and this is so, even though the motion be sworn to or accompanied by affidavits in support of it.’' McCallister v. State, 1940, 217 Ind. 65, 73, 26 N.E.2d 391, 394. See also Shriner v. State, 1943, 221 Ind. 250, 47 N.E.2d 139;Bowling v. State, 1942, 220 Ind. 497, 44 N.E.2d 171.
A further cause, that the court erred in overruling defendants' objection to the testimony of the witness Ed Rose, on behalf of the State, as to conversations between the defendants and the said witness and others after the witness had invaded the privacy of the room of the defendant Garber, is also unavailing, as the record does not disclose that any objection was made to such testimony of said witness when given at the trial.
Two further assignments, relating to the admitting and striking out of evidence, are not urged or mentioned in appellants' brief, as required by Rule 2-17 of this court, 1943 Revision, and are therefore waived.
Finally it is contended that the finding of the court is not sustained by sufficient evidence, and that the finding of the court is contrary to law....
To continue reading
Request your trial
-
Hoy v. State
...are not in the record. They were not offered in evidence and were not incorporated in a bill of exceptions as was necessary. Butler v. State, 1945, 223 Ind. 260, and cases on p. 262, 60 N.E.2d 137; Headlee v. State, 1929, 201 Ind. 545, 562, and cases cited, 168 N.E. 692, 170 N.E. 433. Even ......