Kirts v. State

• Decision Date: 02 June 1926
• Docket Number: No. 24504.,24504.
• Citation: 198 Ind. 39,152 N.E. 1
• Parties: KIRTS v. STATE.
• Court: Indiana Supreme Court

198 Ind. 39

152 N.E. 1

KIRTS

v.STATE.

No. 24504.

Supreme Court of Indiana.

June 2, 1926.

Appeal from Warren Circuit Court; Burton B. Berry, Judge.

On a petition for rehearing. Petition denied.

For former opinion, see 151 N. E. 132.

MYERS, C. J.

[1] On a petition for a rehearing, appellant asserts that we failed to consider his tendered instruction No. 13. Had appellant desired to question the action of the court in refusing to give this instruction, he should have included it in his motion for a new trial. Not having done so, his mention of it in his points and authorities presents no question.

[2][3][4] The other two points of his petition together indicate a purpose to challenge our ruling pertaining to instruction No. 1 given by the court upon its own motion. Our conclusion then and now is that the objections then urged by appellant were not well taken. He now submits a new and additional reason to the effect that the affidavit charged him with the violation of a statute not then in existence. His contention in this respect cannot be sustained for two reasons: (1) We know of no rule of practice permitting a party on rehearing to attack a decision unfavorable to him upon grounds or for reasons not mentioned in his original presentation. The rule is elementary that appellate courts, conceded to have jurisdiction of a cause, may search the record to affirm, but not to reverse, a judgment. (2) The record discloses that the affidavit in this case was filed with a justice of the peace of Pike township, Warren county, on June 25, 1923, and a warrant was then issued to a constable of that township who, on June 26th, arrested appellant and took him before the justice. He waived examination, and was thereupon recognized to appear before the Warren Circuit Court, where, on September 14, 1923, he was tried and found guilty.

The statute defining the offense of which appellant was convicted took effect March 1, 1923. The affidavit herein was filed nearly four months thereafter, and, although it charged that the offense was committed on or about February 1, 1923, still, for anything disclosed by the record at bar, the evidence may have conclusively shown the commission of the alleged offense on a day certain between March 1st and June 25th. That fact was provable under the issues, and hence the instruction would not necessarily be erroneous, even though it contained the “within two years” clause. Ferris v. State, 156 Ind. 224, 59 N. E. 475;...