Gernhart v. State, 29124

• Decision Date: 21 June 1954
• Docket Number: No. 29124,29124
• Citation: 120 N.E.2d 265,233 Ind. 470
• Parties: GERNHART v. STATE.
• Court: Indiana Supreme Court

Page 265

120 N.E.2d 265

233 Ind. 470

GERNHART v. STATE.

No. 29124.

Supreme Court of Indiana.

June 21, 1954.

Solly K. Frankenstein and Ora R. Kuhlman, Fort Wayne, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Dep. Atty. Gen., for appellee.

BOBBITT, Judge.

Appellant was charged by affidavit under the Acts of 1939, ch. 48, § 52, p. 289, being § 47-2001(b), Burns' 1952 Repl., with the offense of operating a motor vehicle while under the influence of intoxicating liquor, tried by jury, found guilty as charged, fined in the sum of $50, and sentenced to the Indiana State Farm for a period of sixty days.

The sole error assigned is the overruling of appellant's motion for a new trial.

The motion contains 23 specifications or grounds for a new trial.

Specifications numbered 1, 2, 3, 4, 5, 6, 11, 12, and 15, which question the verdict of the jury as not being sustained by sufficient evidence and as being contrary to law, the refusal to give defendant's-appellant's tendered instructions numbered 6 and 7, and the admission of certain testimony, are not discussed in the argument section of appellant's brief and are, therefore, deemed waived. Rule 2-17(e) and (f) of the Indiana Supreme Court, 1954 edition. Butler v. State, 1945, 223 Ind. 260, 262, 60 N.E.2d 137.

Specifications numbered 7, 8, 9, 10, 13, and 14 allege error in the trial court in admitting certain testimony concerning the results of a drunkometer test.

Appellant does not here contend that the taking of a drunkometer test was a violation of any of his constitutional rights, 'but rather that the evidence of the test and the results thereof were not within the realm of being a determination 'of the amount of alcohol in the appellant's blood at the time the offense was alleged to have been committed' as shown by a chemical analysis of his breath, urine or other bodily substance and also the power of the legislature to make something a fact when from scientific determination the same is not a fact.'

Specifications numbered 8, 9, 10, and 13 do not show any grounds for the objection to the testimony.

'A party objecting to the admission of evidence or asking that it be struck out must state to the trial court the specific ground or grounds of objection relied on, and only those objections are available as causes for reversal, on appeal, which were made and ought to have been sustained in the court below.' Citing Authorities. Pocker v. State, 1926, 197 Ind. 599, 601, 150 N.E. 408.

No specific objections to the testimony referred to in specifications numbered 8, 9, 10 and 13 having been made in the trial court, errors, if any, in the admission of such testimony are not causes for a reversal of the judgment. Pocker v. State, supra; Butler v. State, 1945, 223 Ind. 260, 262, 60 N.E.2d 137, supra.

Appellant here asserts that a drunkometer test is not 'a chemical analysis' within the meaning of that term as used in Acts 1939, ch. 48, § 54, p. 289, being § 47-2003(2), Burns' 1952 Repl. This question was not raised in the trial court. A similar situation was before this court in Heyverests v. State, 1931, 202 Ind. 359, at page 362, 174 N.E. 710, 711, and this court said:

'In the trial court appellant made no objection, on the ground which he now asserts and relies upon, to the evidence which was offered and received. A party who objects to the admission of evidence must state or point out to the trial court with reasonable certainty the specific grounds of his objection, and, when such grounds are stated, the implication is that there are not others, or, if others, that they are waived. Howard v. State (1921), 191 Ind. 232, 242, 131 N.E. 403; Bass v. State (1894), 136 Ind. 165, 36 N.E. 124. If the evidence is received over such objection, an appellant cannot, in the court of...