Riley v. State

• Decision Date: 23 November 1897
• Citation: 48 N.E. 345,149 Ind. 48
• Parties: RILEY v. STATE.
• Court: Indiana Supreme Court

149 Ind. 48

48 N.E. 345

RILEY

v.STATE.

Supreme Court of Indiana.

Nov. 23, 1897.

Appeal from circuit court, Allen county; E. O'Rourke, Judge.

John Riley was convicted of crime, and appeals. Affirmed.

John H. Aiken, for appellant. Wm. A. Ketcham, Atty. Gen., Merrill Moores, and C. C. Hadley, for the State.

McCABE, J.

We are informed by a statement or recital in the transcript that this was a prosecution against the appellant, based on an affidavit and information filed by the prosecuting attorney, charging the defendant with entering a house to commit a felony, to which he pleaded not guilty. A trial resulted in a verdict of guilty, and fixing his punishment at 10 years' imprisonment in the state prison, and that he be disfranchised for 10 years. Final judgment was rendered on the verdict, over appellant's motion for a new trial.

The only errors properly assigned call in question the action of the circuit court in overruling appellant's motion to quash the affidavit and information, and in overruling appellant's motion for a new trial. But the affidavit and information are not in the transcript. However, appellant's counsel have wisely refrained from discussing the ruling overruling the motion to quash. That error, if there was error in the ruling, is waived by failure to point it out in his brief. The only ruling discussed in appellant's brief is the refusal of a new trial.

We learn from appellant's brief that the felony charged in the affidavit and information was larceny. The grounds for the motion for a new trial, urged here for a reversal, are the admission of evidence tending to prove other crimes than those charged in the affidavit, as is contended in appellant's brief. We can only know from the record proper that the admitted evidence tended to prove a different crime or different crimes than those charged in the affidavit and information. In the absence of the affidavit and information in the transcript, we cannot know that the evidence admitted was not admissible thereunder, or that it did not tend directly to prove some one or more of the crimes charged in such affidavit and information. Appeals to this court are tried upon the record, and not the statement of counsel, and by the record decided. Elliott, App. Proc. § 186, and cases there cited. The presumption is in favor of the regularity and legality of the proceedings of the trial court; and, before that can be overcome, the appellant must present a transcript of the...