Michael v. State
| Decision Date | 19 November 1912 |
| Docket Number | 22,038 |
| Parties | Michael v. State of Indiana |
| Court | Indiana Supreme Court |
Rehearing Denied December 17, 1912.
From Cass Circuit Court; John S. Lairy, Judge.
Prosecution by the State of Indiana against Samuel Michael. From a judgment of conviction, the defendant appeals.
Reversed.
Robert Pollard, George W. Waters, Kistler & Kistler and McConnell, Jenkines, Jenkines & Stuart, for appellant.
Thomas M. Honan, Attorney-General, Thomas H. Branaman, Edwin Corr and James E. McCullough, for the State.
Morris J. Myers, J., did not participate in the determination of this cause.
Appellant was tried by a jury, and convicted of the crime of manslaughter, on an indictment charging him with the murder in the first degree, of Levi Pipenger.
Appellant contends that various errors were committed by the trial court in giving, and in refusing to give, instructions to the jury. The Attorney-General claims that appellant has waived his right to a consideration of these alleged errors, by reason of his failure to comply with Rule 22 of this court, in relation to the preparation of his brief. Appellant especially relies on his assigned error in the giving to the jury, by the trial court, of instruction thirty-eight, requested by the State.
In appellant's brief, under the heading of "Points and Authorities", certain propositions of law are stated and authorities in support thereof cited, but no particular instructions are specifically designated to which such propositions apply. Under the heading of "Argument," however, in his brief, the instructions are designated to which appellant's various legal propositions are applicable, including instruction thirty-eight. The Attorney-General, while asserting that appellant has waived his right to a consideration of instruction thirty-eight, and others, has, nevertheless, in his brief, fully discussed, on their merits, appellant's specific criticisms of said instructions as disclosed in appellant's brief, under the heading of "Argument".
Appellant, in his reply brief, contends that even if it be admitted that his statement of points and authorities is in certain particulars not sufficiently definite to comply with clause 5 of Rule 22, yet, when taken in connection with appellee's brief, the court can intelligently pass on the questions presented, by reason of the fact that appellee's brief supplements that of appellant, and in such case appellant's right to a consideration of the questions presented shall be deemed as not waived.
It is provided in clause 5 of Rule 22 that "no alleged error or point, not contained in this statement of points, shall be raised afterwards, either by reply brief, or in oral or printed argument."
In Pittsburgh, etc., R. Co. v. Lightheiser (1907), 168 Ind. 438, 460, 78 N.E. 1033, this court said: "While a discussion or elaboration of a point is not proper in the statement of points, mere general statements, without specific and definite reasons specifically applied, present no question for decision." (Italics ours.)
In Leach v. State (1912), 177 Ind. 234, 240, 97 N.E. 792, this court said: "Mere abstract statements of law or fact, or both, unless applied specifically to some particular ruling or action of the court, although contained in appellant's statement of points, present no question."
The reasons for such rule are so obvious as to require little attention. The burden is on appellant to point out the alleged errors of the trial court. Where, as here, complaint is made of various instructions, and mere abstract statements of law are made without designating the particular instructions to which such statements apply, there is, unless the defect may be cured by appellee, imposed on the court the duty of determining, in advance, at which particular instruction the criticism is directed. This task is frequently a difficult one, especially where the instructions are either numerous or lengthy, and Rule 22 appropriately casts on appellant's counsel the duty of performing it. He knows the particular instruction he is intending to assail, and he cannot complain if opposing counsel and the appellate tribunal decline to search the record in the effort to ascertain what action of the trial court appellant is attacking.
We are of the opinion that appellant's brief does not comply with Rule 22 of this court in the particular mentioned, because it failed, in respect to instruction thirty-eight, and others, to specify the instruction or instructions to which the points and authorities were applicable.
Where, however, as here, the appellee has voluntarily performed a duty which the rule imposes on appellant, and specifies the instructions to which appellant's points apply, and fully discusses such points on their merits, there seems to be no reason why the court should apply the doctrine of waiver.
In Teeple v. State, ex rel. (1908) 171 Ind. 268, 271, 86 N.E. 49, this court said: "It is not necessary to determine whether such ruling and...
To continue reading
Request your trial
-
Michael v. State
...178 Ind. 67699 N.E. 788MICHAELv.STATE.No. 22,038.1Supreme Court of Indiana.Nov. 19, Appeal from Circuit Court, Cass County; John S. Lairy, Judge. Samuel Michael was convicted of manslaughter, and he appeals. Reversed, with instructions to sustain appellant's motion for a new trial.Kistler &......