Shewmaker v. State, 29393

• Citation: 138 N.E.2d 290,236 Ind. 49
• Decision Date: 07 December 1956
• Docket Number: No. 29393,29393
• Parties: Straud Lee SHEWMAKER, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 290

138 N.E.2d 290 236 Ind. 49 Straud Lee SHEWMAKER, Appellant,
v.
STATE of Indiana, Appellee. No. 29393. Supreme Court of Indiana. Dec. 7, 1956.

[236 Ind. 50]

Page 291

James D. Williams, Corydon, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Deputy Atty. Gen., for appellee.

LANDIS, Judge.

Appellant was convicted after a jury trial of the misdemeanor of driving while under the influence of intoxicating liquor. The lower court fixed his fine at $100 and costs, sentenced him to ten days in jail and recommended the suspension of his driver's license for one year. He appeals from the judgment of conviction and has assigned as error the overruling of his motion for new trial.

One of the specifications relied on by appellant in his motion for new trial is alleged error committed by the court in overruling appellant's motion to dismiss the action because of the running of the three

Page 292

term statute. ¹ Appellee (The State) contends that although evidence was introduced upon said motion by both appellant and appellee, the evidence is not in the record as the same is not properly certified [236 Ind. 51] to, and was not approved by the trial judge. Appellant does not dispute appellee's assertion that the evidence is not in the record. This court can not challenge the finding of the trial court based upon evidence when the evidence upon which the court's decision was predicated is not brought before us. We recognize that the discharge statute ² is to be so construed that all doubts are to be resolved in favor of the accused, ³ but without the evidence before us we must presume that the evidence below was sufficient to sustain the findings of the trial court. We accordingly hold that no error is presented by appellant with reference to the court's overruling of his motion to dismiss raising the question of the running of the three term statute.

Appellant's remaining contention of error relates to the giving of two instructions by the court and the refusing of two other instructions offered by appellant as to the form of verdict, according to which the jury were not permitted to fix the punishment for the misdemeanor of driving while under the influence of liquor. Appellee (The State) argues that the error is not properly raised by appellant for the reason that one specification of the motion for new trial questions separate rulings of the court in giving two of its own instructions and refusing two other instructions of appellant as to the form of the verdict. However, we believe appellee's objection is without merit as the same question was presented by appellant's objections to the court's given instructions as by the court's refusal of appellant's offered instructions concerning the form of the verdict. We have held that separate rulings of the court may be assigned under one specification of a motion for new trial provided all [236 Ind. 52] of said rulings are erroneous. See: Osburn v. State, 1905, 164 Ind. 262, 73 N.E. 601; Sievers v. Peters Box & Lumber Company, 1898, 151 Ind. 642, 663, 664, 50 N.E. 877, 52 N.E. 399; Ohio & Mississippi Railway Company v. McCartney, 1890, 121 Ind. 385, 387, 23 N.E. 258. It is obvious here that if the giving of the court's own instructions was erroneous, it was similarly erroneous to refuse those offered by appellant.

We now proceed to a consideration of the question of whether the court should have permitted the jury to fix the punishment for the misdemeanor of driving while under the influence of liquor.

The statutes we are called upon to construe are the Acts of 1927, ch. 200, §§ 1, 2 and 3, p. 574, Burns' §§ 9-1819, 9-1820 and 9-1821, as they are affected by the Acts of 1939, ch. 48, § 54, p. 289, Acts 1955, ch. 171, § 2, p. 440, Burns' Statutes, § 47-2003.

These statutes provide so far as applicable as follows:

'When the defendant is found guilty the jury, except in the cases provided for, in the next three [two] sections, must state, in the verdict, the amount of fine and the punishment to be inflicted; * * *.' Acts 1927, ch. 200, § 1, p. 574, being Burns' § 9-1819, 1956 Repl., supra. (Emphasis supplied.)

The next two sections referred to deal with felonies covered by the indeterminate sentence law and...