Day v. State

• Citation: 192 N.E. 433,207 Ind. 273
• Decision Date: 30 October 1934
• Docket Number: No. 26156.,26156.
• Parties: DAY v. STATE.
• Court: Indiana Supreme Court

207 Ind. 273
192 N.E. 433

DAY
v.
STATE.

No. 26156.

Supreme Court of Indiana.

Oct. 30, 1934.

Appeal from Fountain Circuit Court; Wm. N. White, Special Judge.

Leslie Day was convicted of assault and battery with intent to rob, and he appeals.

Affirmed.

McCabe & Sons, of Williamsport, and A. T. Livengood, of Covington, for appellant.

ROLL, Judge.

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.

[192 N.E. 434]

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...