Day v. State
| Decision Date | 30 October 1934 |
| Docket Number | 26156 |
| Citation | 192 N.E. 433,207 Ind. 273 |
| Parties | DAY v. STATE |
| Court | Indiana Supreme Court |
1. CRIMINAL LAW---Appeal---Assignment of Error---Error in Selection of Jury.---Any error in the selection of a jury is proper cause for new trial and no question is presented on appeal by special assignment of error. p. 275.
2. CRIMINAL LAW---Appeal---Briefs---Statement of Record---Waiver of Error.---No question is presented as to the ruling on a motion to quash the affidavit where neither the motion nor its substance is set out in appellant's briefs and no reference made to where the same may be found. p. 276.
3. CRIMINAL LAW---Appeal---Review---Burden to Show Error.---Appellant has the burden of making an affirmative showing of prejudicial error and the court will not search the record for errors to reverse the cause. p. 276.
4. CRIMINAL LAW---Venue---Change of---Discretion of Court.---Granting a change of venue in a case where the death penalty cannot be inflicted is within the sound discretion of the court. p. 276.
5. CRIMINAL LAW---Appeal---Review---Refusal of Change of Venue.---Refusal to grant a change of venue in a case for which the death penalty cannot be inflicted is not reversible error unless an abuse of discretion is shown. p. 276.
6. CRIMINAL LAW---Appeal---Bills of Exceptions---Affidavit Supporting Motion for Change of Venue.---An affidavit in support of a motion for change of venue can only be brought into the record by special bill of exceptions. p. 276.
7. JUDGES---Disqualification---Motion for Based on Prior Rulings.---A motion in a criminal case that the judge disqualify himself based on prior rulings was properly overruled in absence of any charge of bias or prejudice or that such prior rulings were erroneous. p. 277.
8. CRIMINAL LAW---Special Judge---Continuing Jurisdiction.---The power of a special judge in a criminal action continues until the cause is finally determined. (2236, Burns 1926, 9--1302 Burns 1933, 2223, Baldwin's 1934.) p. 277.
9. CRIMINAL LAW---Appeal---Briefs---Points and Authorities---Waiver of Error.---Alleged error in overruling a motion to appoint a new bailiff is waived by failure to state any proposition or point with reference thereto in the briefs or to support same by argument or authority. p. 277.
10. CRIMINAL LAW---Appeal---Review---Refusal of Instruction Covered by Others Given.---It was not error to refuse a tendered instruction where the subject matter thereof was fully and suffi- ciently covered by another instruction given on the court's own motion. p. 277.
11. CRIMINAL LAW---Appeal---Review---Instruction as to Character---Absence of Evidence.---In the absence of the evidence in the record no question was presented as to the court's refusal to give a tendered instruction relative to defendant's good character. p. 278.
12. CRIMINAL LAW---Appeal---Review---Instructions---Absence of Evidence.---Where the evidence is not in the record the court will presume that a tendered instruction refused by the court was inapplicable. p. 278.
13. CRIMINAL LAW---Appeal---Briefs---Failure to State Specific Objections to Instructions.---A general assignment that the court erred in giving instructions presents no error where specific objections thereto are not set out. p. 278.
14. CRIMINAL LAW---Motion in Arrest---Defects in Indictment---Defect Curable by Evidence.---An affidavit for assault and battery with intent to rob which failed to allege the value of the goods in question did not afford cause for a motion in arrest of judgment, such defect being curable by the evidence. p. 279.
Leslie Day was convicted of assault and battery with intent to rob and he appealed. Affirmed.
McCabe & Sons, of Williamsport, and A. T. Livengood, of Covington for appellant.
Appellant was charged by affidavit with the crime of assault and battery with intent to rob. A motion to quash was overruled. After the jurors had been sworn to answer questions and had been examined by the state, appellant filed his motion for a change of venue from the county which was overruled.
Prior to the filing his motion to quash, appellant asked for a change of venue from the judge of the Fountain circuit court which was granted and the Honorable W. N. White was duly selected as special judge to try the cause. Upon the first trial, the jury disagreed and was discharged. After the first trial, appellant filed a motion for a change of venue from the special judge which was overruled. He also filed a motion for an elisor and also a motion to appoint a different bailiff, which motions were overruled. Prior to the selection of a jury, appellant moved that the examination of each juror touching his competency to sit, be had and held separate and apart and out of the hearing and presence of every other juror or prospective juror, which motion was overruled.
The cause was submitted to a jury for trial and a verdict of guilty as charged by the affidavit was returned.
Appellant filed a motion in arrest of judgment and for a new trial which the court overruled and this appeal followed.
The errors assigned for reversal are:
(1) The overruling of his motion to examine the jury separately; (2) overruling his motion to quash; (3) overruling his motion for a change of venue from the county; (4) overruling his motion to disqualify as special judge; (5) overruling his motion to appoint a new bailiff; (6) overruling his motion for a new trial; (7) overruling his motion in arrest of judgment.
Appellant's first assignment of error presents no question on appeal, as any question relative to the selection of the jury should be assigned as a cause for a new trial under clause 1 of section 2325, Burns' Ann. St. 1926, and not as an independent assignment of error. Bush v. State (1920) 189 Ind. 467, 128 N.E. 443. No such cause was assigned in his motion for a new trial.
As to appellant's second assigned error, he again presents no question. Neither the motion to quash nor the substance thereof is contained or set out in his brief and neither is there any reference to where the same may be found in the record. Under such conditions, no question as to the correctness of the court's ruling is presented. Chicago, etc., R. Co. v. Walton (1905) 165 Ind. 253, 74 N.E. 1090; Epstein v. State (1920) 190 Ind. 693, 694, 127 N.E. 441, 128 N.E. 353; Scott v. State (1911) 176 Ind. 382, 96 N.E. 125. This court will not search the record for errors to reverse the cause. The Huber Mfg. Co. v. Blessing et al. (1912) 51 Ind.App. 89, 99 N.E. 132. It is the duty of appellant to make an affirmative showing of prejudicial error. Ward v. State (1913) 179 Ind. 524, 101 N.E. 809.
Appellant's third assignment of error, that the court erred in overruling his motion for a change of venue from the county, cannot be sustained. The granting of a change of venue in such a case (the punishment for the crime charged not being death) is within the sound discretion of the court. When the application for a change of venue from the county is made in the language of the statute (Burns' Ann. St. 1926, § 2235), and no abuse of discretion is shown, it is not error to overrule the motion. Pindell v. State (1925) 196 Ind. 175, 147 N.E. 711; Hinshaw v. State (1919) 188 Ind. 447, 122 N.E. 418. Appellant filed an affidavit in support of his motion for a change of venue from the county, but such affidavit can only be brought into the record by a special bill of exception. No such special bill was filed. The affidavit therefore is not a part of the record in this case. Perfect v. State (1923) 197 Ind. 401-409, 141 N.E. 52; Holland v. State (1892) 131 Ind. 568, 31 N.E. 359.
Appellant's motion that the special judge disqualify himself was overruled and this ruling is assigned as his fourth assignment of error. This motion does not charge the special judge with bias or prejudice, but only alleges that he made certain rulings at the previous trial on legal questions and that he would make the same rulings at this trial. Nowhere does he charge that the rulings made at the first trial were erroneous or made through prejudice of the appellant, or that appellant suffered by reason thereof. The motion was insufficient and was properly overruled. Hays v. Morgan (1882) 87 Ind. 231. Under the...
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