Carmody v. State
| Decision Date | 19 June 1912 |
| Citation | 98 N.E. 870,178 Ind. 158 |
| Parties | CARMODY et al. v. STATE. No. 22,139. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
mAppeal from Circuit Court, Lake County; Willis C. McMahon, Judge.
Martin H. Carmody and others were convicted of riot, and they appeal. Affirmed.Harris & Bretsch, McAleer Bros., S. K. Markham, and J. K. Stinson, for appellants. Thomas M. Honan, Atty. Gen., Thomas H. Branaman, Edwin Corr, and James E. McCullough, for the State.
Appellants were charged by affidavit with the offense of riot under section 2334, Burns 1908. A trial of said cause resulted in a verdict of guilty, and, over a motion for a new trial, judgment was rendered on the verdict. The errors assigned call in question the action of the court in overruling (1) appellants' motion to quash the affidavit, and (2) the motion for a new trial.
The only objection urged against the affidavit in the statement of points is “that it is not alleged that the offense was committed ‘in a public place,’ but only that it was committed in Lake county.”
[1] It is insisted by appellants that the “essence of the offense of riot is the disturbing of the public in general in public places by three or more men,” citing State v. Weekly, 29 Ind. 206. The case cited was a prosecution for an affray, which is defined by statute to be “fighting by agreement in a public place,” and is therefore not in point here. Section 2334, Burns 1908, which appellants are charged with violating, reads as follows: “If three or more persons shall do an act in a violent and tumultuous manner, they shall be deemed guilty of a riot, and, on conviction, shall be fined not exceeding five hundred dollars each, to which may be added imprisonment in the county jail not exceeding three months each.” It will be observed that it is not provided in said section that the act constituting a riot must be committed in a public place. Such an allegation is not necessary to the sufficiency of the affidavit. Said objection to the affidavit is not tenable. State v. Voshall, 4 Ind. 589;State v. Dillard, 5 Blackf. 365, 35 Am. Dec. 128;Thayer v. State, 11 Ind. 287;Kiphart v. State, 42 Ind. 273;State v. Brown, 69 Ind. 95, 35 Am. Rep. 210;State v. Acra et al., 2 Ind. App. 384, 28 N. E. 570; Gillett, Crim. Law (2d Ed.) second form on page 186.
[2] It is next insisted by appellants that the verdict is not sustained by sufficient evidence, and is contrary to law. Said questions can only be presented as causes for a new trial. Appellants have not set out in their brief any motion for a new trial or the substance thereof, or any ground assigned therefor, as required by rule 22 of this court. They have, therefore, waived the right to present any question in regard to the sufficiency of the evidence. Bennett v. Root Furniture Co., 96 N. E. 708;Hall v. McDonald, 171 Ind. 9, 17, 85 N. E. 707, and cases cited; Cal Hirsch, etc., Co. v. Peru, etc., Co. (App.) 96 N. E. 807, 808 (2), and cases cited; Dillon v. State (App.) 96 N. E. 171 (1). The determination of any question in regard to the sufficiency of the evidence is waived for another reason.
[3] It is provided in rule 22 (55 N. E. vi) of this court that, “if the sufficiency of the evidence to sustain the verdict or finding in fact or law is assigned, the statement shall contain a condensed recital of the evidence in narrative form so as to present the substance clearly and concisely.” Appellant's brief does not contain a condensed recital of the evidence of each...
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Graf v. State
...of appellant, and as the alleged error goes to the sufficiency of the evidence, he has waived this assigned error. Carmody v. State, 1912, 178 Ind. 158, 98 N.E. 870. And as appellant has failed to set out a condensed recital of the evidence he has waived any question to sustain the verdict.......