Lee v. State, 26869.

• Citation: 213 Ind. 352,12 N.E.2d 949
• Decision Date: 15 February 1938
• Docket Number: No. 26869.,26869.
• Parties: LEE v. STATE.
• Court: Indiana Supreme Court

213 Ind. 352
12 N.E.2d 949

LEE
v.
STATE.

No. 26869.

Supreme Court of Indiana.

Feb. 15, 1938.

Clarence Lee was convicted of burglary, and he appeals.

Reversed, with instructions to pronounce judgment for a determinate period.

[12 N.E.2d 950]

Appeal from Wells Circuit Court; John F. Decker, Judge.
Robt. A. Buhler, of Fort Wayne, for appellant.

Omer Stokes Jackson, Atty. Gen., and Rexell Boyd, of Evansville, for the State.

HUGHES, Judge.

This action was brought by the State of Indiana against the appellant Clarence Lee, Ira Williams, and Dan Terhune by filing an affidavit against them in three counts, charging petit larceny, burglary, and a conspiracy to commit a felony. The appellant was found guilty on the second count charging burglary.

The errors relied upon by the appellant for reversal are:

(1) the overruling of his motion to quash the amended affidavit,

(2) that the court erred in overruling appellant's motion for a new trial, and,

(3) in overruling appellant's motion to correct and modify the judgment.

The only grounds properly presented for a new trial are as follows:

(1) The court erred in overruling defendant's motion to require the State to elect on which count of the affidavit it desired to rely upon;

(2) That the verdict is contrary to law and is not sustained by sufficient evidence;

(3) That the court erred in sentencing the appellant to an indeterminate sentence instead of a determinate sentence.

The appellant endeavors to present error upon the giving and refusing to give certain instructions which are not properly in the record. They are not brought into the record by a special bill of exceptions and therefore not a part of the record on appeal. Rhodes v. State, 202 Ind. 159, 171 N.E. 301,172 N.E. 176;Donovan v. State, 185 Ind. 15, 111 N.E. 433;Goodman v. State, 188 Ind. 70, 121 N.E. 826.

The court did not err in overruling the motion to quash the amended affidavit. Each count of the affidavit was drawn substantially in conformity with the statute covering the specific offense. As stated above, the appellant was found guilty of the charge contained in the second count, burglary. This count charged, in substance, that the appellant, Williams, and Terhune on the 8th day of December, 1936, in Wells County, in the State of Indiana, did unlawfully, feloniously, and burglariously enter into the granary of one Chris Grewe with intent then and there feloniously and burglariously to take, steal, and carry away the goods, chattels and personal property of said Chris Grewe.

There was no error committed in refusing appellant's motion to require the State to elect on which of the three counts of the affidavit it relied upon for trial. The felonies charged in the different counts were of the same character and grew out of the same transactions, and, under such circumstances...