State v. Cox, No. 1--373A46
| Docket Nº | No. 1--373A46 |
| Citation | 297 N.E.2d 920, 156 Ind.App. 548 |
| Case Date | June 27, 1973 |
| Court | Court of Appeals of Indiana |
Page 920
v.
Charles A. COX, Defendant-Appellee.
Page 921
Theo. L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., for plaintiff-appellant.
Allyn, Knowles & Givens, Mount Vernon, for plaintiff-appellee.
ROBERTSON, Presiding Judge.
On June 1, 1972, defendant-appellee (Cox) was charged by amended affidavit with carrying a pistol [156 Ind.App. 549] without a license in a motor vehicle. A trial by jury was had in the Posey Circuit Court, and at the close of the State's evidence the trial court, upon motion by Cox, directed the jury to enter a verdict of not guilty, which they did. The State thereafter filed a motion to correct errors and subsequently an amended motion to correct errors to both of which the trial court sustained a motion to strike on behalf of Cox. From the action of the trial court in striking the State's amended motion to correct errors and in directing the jury to find defendant not guilty, the State brings this appeal.
The State's amended motion to correct errors which the court struck reads as follows:
'Wherefore, the State asks the Court to find its motion of directed verdict in favor of defendant and its directing jury to find the defendant not guilty was contrary to law since there was no essential element ujpon which there was a total lack of evidence, the State stipulating that a judgment in its favor does not allow a retrial of defendant since such retrial would be a violation of former jeopardy.'
In his motion to strike, Cox contended, as he does on appeal, that the State's motion to correct errors 'asks for relief which
Page 922
cannot be granted'. The State urges on appeal that the motion to strike should not have been sustained because the relief sought in its amended motion to correct errors could have properly been granted and that the motion to correct errors was the only proper means by which to give the trial court an opportunity to correct its error before subjecting the parties to the expense and inconvenience of an appeal.This case presents the unique situation where the State is seeking to appeal an adverse judgment in a criminal action. Such a situation is strictly regulated by statute, as found in IC 35--1--47--2, Ind.Ann.Stat. § 9--2304 (Burns' 1956 Repl.):
'Appeals . . . may be taken by the state in the following cases:
First. From a judgment for the defendant, on quashing or setting aside an indictment or affidavit, or sustaining a plea in abatement.
[156 Ind.App. 550] Second. From an order or judgment for the defendant, ujpon his motion for discharge because of delay of his trial not caused by his act, or upon his plea of former jeopardy, presented and ruled upon prior to trial.
Third. From a judgment of the court arresting judgment.
Fourth. Upon a question reserved by the state.'
It would appear in this action that the State is seeking to appeal a reserved question of law under the fourth clause of Burns' § 9--2304. An appeal by the State on a reserved question of law is further controlled by IC 35--1--43--2, Ind.Ann.Stat. § 9--2102 (Burns' 1956 Repl.) which reads:
'The prosecuting attorney may except to any decision of the court during the prosecution of any cause, and reserve the point of law for the decision of the Supreme Court. The bill of exceptions must state clearly so much of the record and proceedings as may be necessary for a fair statement of the...
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Klopfenstein v. State, No. 2-681A193
...of fact could reasonably infer an intention to convey or transport the weapon from one place to another. State v. Cox (1st Dist. 1973) 156 Ind.App. 548, 297 N.E.2d 920. Here, Klopfenstein was driving the car just before Officer Owensby stopped it. Shortly thereafter, Owensby discovered two ......
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Deshazier v. State, No. 49A02-0704-CR-323.
...was not required to have introduced evidence that Deshazier actually drove the vehicle that contained the handgun. See State v. Cox, 156 Ind. App. 548, 552, 297 N.E.2d 920, 923 (1973) (noting that the court "was not prepared to say that locomotion must be proven in order to constitute ......
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McAnalley v. State, No. 185S19
...the carrying of a handgun in a vehicle, have required proof of an intention to convey or transport the weapon, State v. Cox (1973), 156 Ind.App. 548, 297 N.E.2d 920; Klopfenstein v. State (1982), Ind.App., 439 N.E.2d 1181. Defendant argues that because the handgun did not belong to him, and......
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Odle v. Public Service Commission of Indiana, No. 2--972A64
...to grant a rehearing for the purpose of receiving 'additional evidence' as to the need for the Certificate. Bud does not claim [156 Ind.App. 548] to have newly discovered evidence or some other equitable reason to support its insistence on a rehearing, nor does it cite any authority that it......
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Klopfenstein v. State, No. 2-681A193
...of fact could reasonably infer an intention to convey or transport the weapon from one place to another. State v. Cox (1st Dist. 1973) 156 Ind.App. 548, 297 N.E.2d 920. Here, Klopfenstein was driving the car just before Officer Owensby stopped it. Shortly thereafter, Owensby discovered two ......
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Deshazier v. State, No. 49A02-0704-CR-323.
...was not required to have introduced evidence that Deshazier actually drove the vehicle that contained the handgun. See State v. Cox, 156 Ind. App. 548, 552, 297 N.E.2d 920, 923 (1973) (noting that the court "was not prepared to say that locomotion must be proven in order to constitute ......
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McAnalley v. State, No. 185S19
...the carrying of a handgun in a vehicle, have required proof of an intention to convey or transport the weapon, State v. Cox (1973), 156 Ind.App. 548, 297 N.E.2d 920; Klopfenstein v. State (1982), Ind.App., 439 N.E.2d 1181. Defendant argues that because the handgun did not belong to him, and......
-
Odle v. Public Service Commission of Indiana, No. 2--972A64
...to grant a rehearing for the purpose of receiving 'additional evidence' as to the need for the Certificate. Bud does not claim [156 Ind.App. 548] to have newly discovered evidence or some other equitable reason to support its insistence on a rehearing, nor does it cite any authority that it......