Schnuer v. The State
Decision Date | 05 October 1897 |
Docket Number | 2,577 |
Citation | 47 N.E. 843,18 Ind.App. 226 |
Parties | SCHNUER v. THE STATE |
Court | Indiana Appellate Court |
From the Huntington Circuit Court.
Affirmed.
J. B Kenner, U. S. Lesh and C. K. Lucas, for appellant.
W. A Ketcham, Attorney-General, Merrill Moores, John R. Day and Edgar E. Kelsey, for State.
Appellant was convicted before a justice of the peace on a charge of keeping a gaming house in violation of section 2173, Burns' R. S. 1894. From the judgment of the justice of the peace the appellant appealed to the circuit court of Huntington county. In said court he was twice tried by a jury. Upon the first trial the jury failed to agree. The second trial resulted in his conviction and an assessment of a fine of $ 25.00.
The errors discussed (those assigned and not discussed are, under the rule, waived) arise on the motion for a new trial and are, (1) "error of law in admitting the evidence of Wesley Dennius over the objection and exception of the appellant; (2) that the verdict of the jury is contrary to the evidence, is contrary to law, and is not sustained by sufficient evidence."
The second, third and fourth causes for a new trial as above set out challenge the sufficiency of the evidence to support the verdict. We find, upon a careful examination of the record, that there was evidence to sustain the verdict.
The question here involved is fully discussed by the Supreme Court in Deal v. State, 140 Ind. 354, 39 N.E. 930. In that opinion, McCabe, C. J., speaking for the court, says:
In chancery cases the court weighs the evidence, and makes a final disposition of the case upon the merits. Gale v. Grannis, 9 Ind. 140; Leach v. Leach, 10 Ind. 271.
The correction of errors of fact into which a court or jury may fall is exclusively with the trial judge. When the jury finds against the clear preponderance of the evidence, the verdict is not sustained by sufficient evidence within the meaning of the sixth subdivision of section 568, Burns' R. S. 1894 (559, R. S. 1881), authorizing a new trial. That constitutes an error of fact and not of law. It is the bounden duty of the trial judge to correct such error. Cincinnati, etc., R. R. Co. v. Madden, 134 Ind. 462, 34 N.E. 227.
The remaining error discussed is the "admitting the evidence of Wesley Dennius." The State claimed that one Chester Swears, a witness introduced on the part of the prosecution, had, upon the first trial testified to material facts differing from "his present testimony."...
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