Morton v. State

• Decision Date: 19 November 1935
• Docket Number: 26181
• Citation: 198 N.E. 307,209 Ind. 159
• Parties: MORTON v. STATE
• Court: Indiana Supreme Court

198 N.E. 307

209 Ind. 159

MORTON v. STATE

No. 26181

Supreme Court of Indiana

November 19, 1935

Thomas B. Morton was convicted for conspiracy to commit a felony by setting explosives on the premises of another, and he appeals.

Affirmed.

Appeal from Gibson Circuit Court; Thomas Duncan, Special judge.

Hovey C. Kirk, of Princeton, Miller & Causey, of Terre Haute, and R. W. Armstrong, of Evansville, for appellant.

James M. Ogden, Atty. Gen., and Harry Taylor, Deputy Atty. Gen for the State.

OPINION

ROLL, Judge.

Appellant was jointly indicted with nine other persons for the crime of conspiracy to commit a felony. The felony charged was that of setting explosives upon the premises and buildings of one James S. Miller. See sections 2882, 2442 Burns' Ann. St. 1926.

Appellant entered a plea of not guilty after his motion to quash had been overruled. A jury trial was had which resulted in a verdict of guilty, and judgment was entered, imposing a fine of $ 5,000 and imprisonment for a term of from 2 to 14 years.

Appellant filed his motion for a new trial which was overruled by the court, and afterwards filed his supplemental motion for a new trial.

Two errors are assigned as follows: (1) The court erred in overruling appellant's motion to quash the indictment; (2) the court erred in overruling appellant's motion for a new trial.

The first assigned error is waived by appellant, as he nowhere in his brief points out any error in the indictment or discusses this alleged error in any manner. Klink v. State (1932) 203 Ind. 647, 179 N.E. 549, 79 A. L. R. 272; Barker v. State (1918) 188 Ind. 263, 120 N.E. 593; Fidelity & Casualty Co. v. Sinclair Ref. Co. (1927) 94 Ind.App. 92, 156 N.E. 169, 157 N.E. 13. The only assigned error discussed by appellant in his brief relates to the overruling of his motion for a new trial.

Appellee questions the sufficiency of appellant's brief to present any question to this court for consideration.

We learn from the record in this case that the jury returned its verdict of guilty on November 30, 1931, and on the same day the court rendered judgment. Appellant filed his motion for a new trial on December 21, 1931. On January 18, 1932, being the seventh judicial day of the following term, and more than 30 days after judgment and verdict, appellant filed his supplemental motion for a new trial, over the objections of appellee, on the ground of newly discovered evidence. On January 20, the court overruled appellant's motion for a new trial, and also overruled appellant's supplemental motion for a new trial.

Appellant's motion for a new trial contains 118 separate reasons, but only 3 are discussed in his brief, and these relate to: (1) Certain statements made by one alleged coconspirator after the commission of the alleged crime; (2) certain remarks made by the special prosecuting attorney in his opening remarks to the jury; (3) certain remarks made by the court in the presence of the jury during the trial.

Appellant's supplemental motion for a new trial was for newly discovered evidence. Following the trial of appellant, one 'Dink' Bolin, named in the indictment herein as a codefendant in the conspiracy, entered a plea of guilty, and was examined at great length by the court and counsel on both sides, in which examination he stated that he, Bolin, and one Thomas Sharp were the persons who placed, arranged, and exploded the dynamite and blew up the property of James S. Miller, as charged in the indictment, and that there was no prior conspiracy between him and Sharp and appellant or any of the codefendants concerning the commission of the alleged crime. In support of his supplemental motion for a new trial on the ground of newly discovered evidence, appellant filed Bolin's examination in full, and also the examination of said Sharp; he having been indicted in the meantime jointly with two other named persons, and arrested and after entering a plea of not guilty, withdrew this plea, and entered a plea of guilty to the offense, and whose statement was in substance the same as Bolin's, and also the affidavit of both Bolin and Sharp to the same general effect.

Appellee insists that appellant's brief presents no question for the consideration of this court. Appellant's brief is divided into ten parts. Appellee does not question the first four parts of appellant's brief, so we do not need to review them in this opinion. In the fifth part of the brief of appellant, and under the heading of 'Statement of so much of the record as presents the errors and exceptions relied upon,' we find under (1) 'Motion for new trial,' appellant's motion for a new trial in full. Under (2) 'Defendant's Supplemental Motion for New Trial,' appellant's supplemental motion for a new trial set out in full. Under (3) 'Instructions,' we find all the instructions, followed by a showing that a bill of exceptions containing the instructions was properly filed, and that exceptions to certain instruction given and refused had been reserved. In part 6, under the heading 'The Evidence,' appellant sets out in narrative form the direct testimony of Virgil May only. In part 7, under the heading 'Errors of the Court,' appellant says: 'In permitting Sanford A. Trippett, the Special Prosecuting Attorney, to make the following statement in the presence of the jury in his opening statement.' This is followed by six different statements of certain remarks made by the prosecuting attorney which appellant contends constituted reversible error. The other statement relates to a remark made by the court. Part 8, under the heading 'Errors of the Court,' appellant sets out four different statements of the court which he claims were objectionable, but failed to show that any objections were made to these remarks, or that they have been brought into the record by any bill of exceptions. Part 9 of appellant's brief is his 'Points and authorities.' Under this heading he states: A. 'Declarations of a coconspirator made after the termination of the conspiracy are inadmissible and are sufficient to reverse the cause.' To this proposition he cites two authorities. Under B he states that the remarks of the court were prejudicial to the defendant. Under C, D, E, and F, he affirms that the confession of Bolin and Sharp shows the appellant to be innocent, and a new trial should be granted. Under G, he again asserts that certain evidence given at the trial was inadmissible, and cites authorities to each of the above. Part 10 is the 'Argument.'

We have taken the time to thus briefly outline appellant's brief, so that the appellee's objections to the sufficiency of appellant's brief can be better understood. It will be noted that appellant nowhere discusses his first assignment of error, which relates to the overruling of his motion to quash. We will therefore treat this assigned error as waived. Klink v. State (1932) 203 Ind. 647, 179 N.E. 549, 79 A. L. R. 272; Barker v. State (1918) 188 Ind. 263, 120 N.E. 593; Fidelity & Casualty Co. v. Sinclair Ref. Co. (1927) 94 Ind.App. 92, 156 N.E. 169, 157 N.E. 13.

The other assigned error relates to the overruling of his motion for a new trial. His first point under his points and authorities relate to declarations of a co-conspirator made after the commission of the alleged offense. In the first place, appellant makes no attempt to direct the point under consideration to any alleged error; second, appellant does not set out or state generally what was said or who made the statements of which he makes complaint; third, no showing is made that any question was saved by any objection or exception; and, fourth, the point is a mere abstract proposition of law without any application whatever to any alleged error. This point presents no question for our decision.

The next point made by appellant relates to remarks made by the court. Again appellant does not show to what error the point is applicable. Neither does he show what remarks the court made that prejudiced the jury, or that any objection or exception was taken thereto. It is true that in his motion for a new trial he assigns as reasons therein that the court made certain remarks prejudicial to appellant, but appellant's brief does not show that these remarks were brought into the record by any bill of exceptions, or that he ever filed, or attempted to file, such a bill. No question is presented on this point. Points C, D. E, and F, we assume, relate of the overruling of appellant's supplemental motion for a new trial. The substance to these four points in to the effect that the confessions of Bolin and Sharp show that appellant is innocent of the crime charged, and that appellant was wrongfully convicted.

As pointed out above, appellant, under the heading 'Evidence,' narrated the evidence given by Virgil May on direct examination only. He has not attempted to give a condensed recital of the other evidence, although the record discloses that 86 witnesses testified at the trial of appellant, and mote than 2,000 pages of the record is devoted to the evidence given by these witnesses. It was conceded by the attorneys for appellant in oral argument that the evidence given at the trial was not brought before this court by appellant's brief, and in order for the court to consider and determine this question it would be necessary for the court to search and read more than 2,000 pages of the record devoted to the subject of evidence.

It is so well settled by the decisions of this court that we will not search the record in order to reverse a cause, that we need cite no authority to this proposition. It is the duty of appellant under rule 21, § 5, of the rules of the Supreme Court, to so prepare his brief as will present every alleged error relied upon for...