Kline v. State
| Decision Date | 27 February 1924 |
| Docket Number | 24,276 |
| Citation | 142 N.E. 713,194 Ind. 334 |
| Parties | Kline v. State of Indiana |
| Court | Indiana Supreme Court |
From Marion Criminal Court (53,220); James A. Collins, Judge.
Mike Kline was convicted of keeping a house of ill fame, and he appeals Affirmed.
Affirmed.
Clyde E. Baker, for appellant.
U. S Lesh, Attorney-General, Mrs. Edward Franklin White, Deputy Attorney-General, and O. S. Boling, for the State.
Appellant was charged by affidavit in the language of § 2357 Burns 1914, Acts 1905 p. 584, § 460, with the offense of keeping a house of ill fame, resorted to for purposes of prostitution and lewdness. Overruling his motion for a new trial is assigned as error. The record recites that a motion for a change of judge was filed, and another judge was agreed upon, but that he declined to act, and that defendant withdrew his motion; that some days later the case was called for trial before the regular judge, and that defendant thereupon came in person, and waived arraignment and entered a plea of not guilty, after which he filed a motion to suppress certain evidence, which motion is not shown to have been ruled on, and that the cause was then submitted to a jury for trial; that the trial continued throughout two days, during which eleven witnesses were examined (five being recalled), the jury was instructed, and the verdict was returned, without the motion for a change of judge being refiled or any objection being offered to the regular judge presiding. By withdrawing his motion for a change of judge, and proceeding to trial before the regular judge without objection until after the verdict had been returned, appellant waived his right to have the cause tried by a special judge. Mattingly v. Paul (1882), 88 Ind. 95; Spurlock v. State (1916), 185 Ind. 638, 642, 114 N.E. 209.
Appellant also complains because his motion for a change of judge was permitted to be withdrawn. But the record recites that it was withdrawn in open court several days before the trial commenced by the attorney who had appeared for him throughout, up to that time, before whom (as notary public) the motion had been sworn to, and no objection or exception is shown, either to its withdrawal or to the regular judge acting thereafter. In the absence of any objection or exception there was no available error in what was done. Mattingly v. Paul supra; Spurlock v. State, supra. Rulings must be excepted to at the time they are made, in order to be available as error on appeal. § 656 Burns 1914, § 626 R. S. 1881; Brown v. Ohio, etc., R. Co. (1893), 135 Ind. 587, 35 N.E. 503; Rose v. State (1909), 171 Ind. 662, 671, 87 N.E. 103, 17 Ann. Cas. 228; Ewbank's Manual (2d ed.) § 24b.
Appellant also complains of the refusal to strike out certain evidence after it had been admitted without being objected to for any of the reasons now urged by counsel. Where evidence has been admitted without objection in answer to questions that fully disclosed exactly what would be the character of the answers overruling a motion to strike it out ordinarily is not reversible error. Eckman v. Funderburg (1915), 183 Ind. 208, 213, 108 N.E. 577; Sanger v. Bacon (1913), 180 Ind. 322, 329, 101 N.E. 1001; Cleveland, etc., R. Co. v. Wynant (1893), 134 Ind. 681, 694, 34 N.E. 569; Ewbank, Indiana Trial Ev. § 140. And, even where an objection was made to the introduction of evidence, a motion to strike it out for reasons different from those stated in the objection to its...
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