Holton v. State, 13591.

• Decision Date: 16 April 1929
• Docket Number: No. 13591.,13591.
• Citation: 89 Ind.App. 494,165 N.E. 921
• Parties: HOLTON v. STATE.
• Court: Indiana Appellate Court

89 Ind.App. 494

165 N.E. 921

HOLTON

v.STATE.

No. 13591.

Appellate Court of Indiana, in Banc.

April 16, 1929.

Appeal from Clark Circuit Court; James M. Fortune, Judge.

Lee Holton was convicted of unlawfully maintaining a common nuisance, and he appeals. Affirmed.

James L. Bottorff, of Jeffersonville, for appellant.

Arthur L. Gilliom, Atty. Gen., and Frank L. Greenwald, Deputy Atty. Gen., for the State.

NEAL, J.

The appellant was indicted for unlawfully maintaining a common nuisance under section 20, chapter 4, Acts 1917. The cause was tried by a jury, and a verdict was returned finding the appellant guilty, assessing his fine in the sum of $500, to which was added imprisonment at the Indiana State Farm for a period of six months.

The error relied upon for reversal arises on the overruling of appellant's motion for a new trial.

Appellant in support of his motion for a new trial presents 14 distinct causes or reasons therefor. The first 12 are directed solely to the admission or exclusion of evidence, and causes 13 and 14 are as follows: The verdict is not sustained by sufficient evidence, and the same is contrary to law.

[1] We observe that appellant in the preparation of his brief under the subdivision “the record” has failed to set out the several answers, objections, rulings of the court, and the exceptions to the admission, or rejection of the evidence complained of in support of the first 12 causes or reasons for a new trial. It is not sufficient that such answers, objections, rulings of the court, and exceptions thereto appear only in the brief in the motion for a new trial. Fast v. Judy, 83 Ind. App. 85, 147 N. E. 728;Smith v. Farr, 88 Ind. App. -, 157 N. E. 111;Hewitt v. Westover, 86 Ind. App. 505, 158 N. E. 631;Iles v. Jordon, 87 Ind. App. 220, 159 N. E. 28.

[2] However, we have examined the alleged errors on the admission or rejection of the evidence and are of the opinion that no reversible error can be predicated thereon. If any error was committed by the court in permitting the several witnesses to answer questions based on hearsay statements, such errors were obviated by the court when the jury was instructed, upon motion of appellant, to disregard any answers made by the witnesses, resting upon hearsay, unless the same were a part of the conversation in the presence and hearing of the appellants. Madden v. State, 148 Ind. 183, 47 N. E. 220.

It was necessary for the appellant to show affirmatively that, notwithstanding...