Lay v. State

• Decision Date: 24 June 1913
• Docket Number: 22,316
• Parties: Lay v. State of Indiana
• Court: Indiana Supreme Court

102 N.E. 274

180 Ind. 1

Lay v. State of Indiana

No. 22,316

Supreme Court of Indiana

June 24, 1913

From Johnson Circuit Court; Wm. E. Deupree, Judge.

Prosecution by the State of Indiana against George Lay. From a judgment of conviction, the defendant appeals.

Affirmed.

William Featherngill, for appellant.

Thomas M. Honan, Attorney-General, for the State.

OPINION

Cox, J.

On appeal from a justice of the peace to the circuit court appellant was tried by jury for trespass upon the lands of another, under the provisions of § 2280 Burns 1908, Acts 1905 p. 584, § 388, and was found guilty and fined $ 5.00 and costs.

The first four assignments of error in this court on which a reversal of the judgment of the lower court is sought challenge the affidavit for the first time in this court. Since the taking effect of § 3 of the act of March 4, 1911 (Acts 1911 p. 415), the right to assail an affidavit or indictment by independent assignment of error, for the first time in this court, no longer exists. Robinson v. State (1912), 177 Ind. 263, 97 N.E. 929.

The overruling of appellant's motion to quash the affidavit against him is properly assigned as error, but is not available, as neither appellant's brief nor the record contains any such motion. Ward v. State (1913), 179 Ind. 524, 101 N.E. 809, and cases there cited. The overruling of appellant's motion for a new trial is assigned as error and the causes urged for a new trial as the basis of this alleged error relate to the alleged insufficiency of the evidence both in law and fact to sustain the verdict. This assignment is not available for the reason, as pointed out by the attorney-general, that a plat introduced in evidence by appellant and concerning which several witnesses testified, has not been incorporated in the bill of exceptions containing the evidence and the record does not therefore contain all the evidence. Board, etc. v. Wagner (1894), 138 Ind. 609, 613, 38 N.E. 171; Pittsburgh, etc., R. Co. v. Greb (1905), 34 Ind.App. 625, 632, 73 N.E. 620, and cases there cited.

The overruling of a motion in arrest of judgment made by appellant is also assigned as error and it is earnestly urged that it should have been sustained. A motion in arrest of judgment in this State can only be made on two grounds namely, that the offense was not committed within the jurisdiction of the court, and, that the facts stated in the indictment or affidavit do not constitute a public offense. § 2159 Burns 1908, Acts 1905 p. 584, § 283; Bright v. State (1883), 90 Ind. 343; Merrick v. State (1878), 63 Ind. 327. The only statutory ground stated in appellant's motion is the lack of facts sufficient to constitute an offense. Appellant's counsel have not pointed out wherein the affidavit fails to allege facts covering all the essential elements of the offense and no such failure appears. It is contended, however, that the affidavit was not sworn to and is therefore no affidavit at all. If the claim of counsel that the statement of the offense was not sworn to...