Selke v. State
| Decision Date | 22 February 1937 |
| Docket Number | 26556. |
| Citation | 6 N.E.2d 570,211 Ind. 232 |
| Parties | SELKE v. STATE. |
| Court | Indiana Supreme Court |
Appeal from Ripley Circuit Court; Frank Gardner, Judge.
Kops & Noelker, of Batesville, for appellant.
Philip Lutz, Jr., Atty. Gen., and Caleb J. Lindsey, Asst. Atty Gen., for the State.
The Ripley circuit court overruled appellant's amended motion asking that court (1) to set aside its ruling denying appellant's motion for a new trial, and (2) to set aside commitment and mittimus issued pursuant to appellant's conviction for murder. Appellant has undertaken to appeal from the action of that court and contends that the ruling upon the motion for a new trial should be set aside because appellant was not present in court when the ruling was made and, consequently, that the court's ruling in his absence was in violation of his constitutional right 'to be heard by himself.'
Appellee has moved to dismiss the appeal on the ground that appellant has failed to present any question for review upon appeal.
It is clear from the briefs of appellant and appellee, and from the oral argument, that the material question presented by appellee's motion to dismiss is whether or not the trial court's action in overruling appellant's motion to set aside the overruling of appellant's motion for a new trial, and to set aside commitment and mittimus, constitutes a judgment from which an appeal will lie. The statute [1] provides that 'an appeal to the Supreme Court * * * may be taken by the defendant as a matter of right, from any judgment in a criminal action against him, in the manner and in the cases prescribed herein; and, upon the appeal, any decision of the court or intermediate order made in the progress of the case may be reviewed.'
The statute does not authorize an appeal from every ruling which a court may make against a defendant in a criminal action, but only authorizes an appeal 'from any judgment * * * against him,' and provides for review, upon such appeal, of decisions and rulings of the court made in the progress of the case. This court has construed the statute as authorizing an appeal only from a final judgment in a criminal action. [2] The action of a trial court in overruling a motion for a new trial may be reviewed upon an appeal from a judgment of conviction rendered against a defendant, but the overruling of a motion for a new trial must be assigned as error. In such case the appeal is from the judgment of conviction and not from the ruling upon the motion for a new trial. The overruling of a motion for a new trial does not constitute a judgment, and an appeal does not lie from the court's action in overruling such motion. Likewise, the overruling of a motion to set aside a former ruling upon a motion for a new trial is not a judgment against a defendant and an appeal from the court's ruling upon such motion to set aside will not lie.
Appellant concedes that 'this is not an appeal from the verdict of the murder case' but 'is an appeal to try to bring the case to the Supreme Court,' and that at the time appellant's motion for a new trial was overruled time was neither asked nor given in which to file a bill of exceptions; and that by securing a reversal of the court's order refusing to set aside its ruling upon the motion for new trial appellant may obtain an order granting time within which to file a bill of exceptions.
The present proceeding admittedly is not brought as an appeal from the judgment of conviction rendered against defendant; and for the reasons given above it is ineffectual as an appeal from the court's order overruling the motion to set aside its ruling upon defendant's motion for a new trial.
It is urged that we might treat the instant proceeding as an original action for a writ of mandamus directing the trial court to set aside its ruling upon defendant's motion for a new trial and to reconsider such motion, in order that, in the event such motion is overruled, defendant could ask and receive time within which to file a bill of exceptions for purposes of perfecting an appeal from the judgment against him. To so treat that proceeding would require a showing of such facts and circumstances surrounding the trial and proceedings connected therewith as to suggest a failure or neglect on the part of defendant's trial counsel to properly safeguard d...
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