Snow v. State

• Citation: 125 N.E.2d 802,234 Ind. 234
• Decision Date: 14 April 1955
• Docket Number: No. 29051,29051
• Parties: Ernest SNOW, Appellant, v. The STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 802

125 N.E.2d 802

234 Ind. 234

Ernest SNOW, Appellant, v. The STATE of Indiana, Appellee.

No. 29051.

Supreme Court of Indiana.

April 14, 1955.

H. Perry Smith, A. F. Zainey, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Frank E. Spencer, Deputy Attys. Gen., for appellee.

ACHOR, Judge.

This is an appeal from the Criminal Court of Marion County of a criminal cause in which the appellant was tried by court and convicted of the offense of robbery while armed with a deadly weapon.

The error assigned is the overruling of appellant's motion for new trial. The grounds asserted by appellant in such motion are as follows:

1. Error of law occurring at the trial in this: That the Court erred when it overruled defendant's verified motion to reject and suppress evidence.

2. That the decision of the Court is contrary to law.

3. That the decision of the Court is not sustained by sufficient evidence.

Appellant's brief does not comply with the requirements of Rule 2-17(c)(d)(e) and (f). Appellant has not set out in either his motion for new trial or his brief the evidence to which he directed his 'motion to reject and supporess.' He has not set out the ruling of the court (if any) thereon, nor has he cited the record and page numbers where such ruling can be found. Therefore, it is impossible for this court to determine from the briefs whether or not there was any evidence admitted which should have been suppressed, or whether there was any error because of the ruling of the court upon defendant's motion with respect thereto. Neither was there a sufficient recital of the evidence upon which to determine whether or not 'the decision of the court was contrary to law. The rule is well settled that where an appellant has not substantially complied with such rule, appellee need not supply the omissions but may ruly upon the court to enforce the rule. Davis v. Broyles, 1914, 55 Ind.App. 316, 103 N.E. 815, and cases cited; Webster v. Bligh, 1912, 50 Ind.App. 56, 98 N.E. 73. And this court will not search the record to reverse. Wood v. Chicago & E. R. Co., 1939, 215 Ind. 467, 18 N.E.2d 772, 20 N.E.2d 642; State ex rel. v. Hinds, 1929, 200 Ind. 613, 165 N.E. 754.

Appellant also urges that the lower court erred in not filing or authorizing the Clerk to include in the bill of exceptions appellant's motion to modify the judgment and sentence. However, no question is presented by said motion as the error, if any, is not assigned in the motion for new trial or as independent assignment of error. Furthermore, an examination of the motion discloses that it is nothing more than an appeal to the mercy of the court. It makes no reference to any error made in the course of the proceedings. Therefore, it could present nothing for consideration by this court. We conclude, therefore, that appellant has presented no question for review under the rules of this court as such rules have been interpreted and applied.

Appellant has presented to this court the question as to whether or not in this case his rights under Sec. 11, Art. 1 of the Constitution of Indiana and the Fourteenth Amendment to the Constitution of the United States to be secure in his person, house, papers and effects against unreasonable search or seizure, have been violated.

In regard to the alleged illegal search and seizure asserted by appellant, the following facts appear from the transcript of the evidence: William Hochgesang was held up at the point of a shotgun by Ernest Snow and another man and robbed of $80 at about 6:15 on the night of December 15, 1951, in the 2400 block of Winthrop Avenue in the City of Indianapolis. This location was approximately two blocks from 2226 Bellefountain. William Ervin, an insurance salesman who was collecting in the neighborhood, witnessed the holdup and was notified by Hochgesang that it was in fact a robbery. After waiting until Hochgesang had called the police, Ervin then drove in his car to 2200 Bellefountain to make a collection but when to the wrong house, going up to the porch of the house at 2226 Bellefountain by mistake. When he stepped upon the porch he was attacked by two men. A tussle followed in which all three went over the bannister. Ervin who was carrying a gun 'with permit) freed himself enough to fire a shot to 'let them know I had possession of a gun.' One man ran away but 'Snow ran upon the porch to get the shotgun he had on the porch.' Ervin then fired another shot which hit Snow in the arm. He then held Snow at gunpoint at the top of the porch while he...