Stengnach v. State

• Decision Date: 18 April 1929
• Docket Number: No. 13729.,13729.
• Citation: 89 Ind.App. 486,165 N.E. 919
• Parties: STENGNACH v. STATE.
• Court: Indiana Appellate Court

89 Ind.App. 486

165 N.E. 919

STENGNACH

v.STATE.

No. 13729.

Appellate Court of Indiana, in Banc.

April 18, 1929.

Appeal from Criminal Court, Lake County; Martin J. Smith, Judge.

Ralph Stengnach was convicted of unlawfully possessing, selling, bartering, exchanging, etc., intoxicating liquor, and he appeals. Affirmed.

Herbert S. Barr, of Crown Point, and Arthur E. Letsinger, of Gary, for appellant.

James M. Ogden, Atty. Gen., and Merl M. Wall, Deputy Atty. Gen., for the State.

NEAL, J.

Appellant was convicted in the city court of the city of Gary on an affidavit charging a violation of the liquor laws of our state in this, to wit, that appellant unlawfully possessed, sold, bartered, exchanged, etc., intoxicating liquor. An appeal was taken by appellant to the criminal court of Lake county. Trial by jury resulted in a verdict of guilty. The court rendered judgment on the verdict. The only error relied upon for reversal is that the court erred in overruling appellant's motion for a new trial.

[1][2][3][4] At the threshold of our consideration of the assigned error, the Attorney General, on behalf of the appellee, lays down the proposition that appellant's brief does not specifically point out any error committed by the trial court; consequently no question is properly presented for review. The motion for new trial contains eleven causes or reasons: (1) The verdict is contrary to law; (2) the verdict is not sustained by sufficient evidence; (3) to (10), inclusive, are predicated upon the admission or refusal to admit certain evidence; and (11) the misconduct of two of the jurors during the trial. Causes 1 and 2 are not mentioned by appellant in his points and authorities, and they are thereby waived. Knapp v. State, 168 Ind. 153, 79 N.E. 1076, 11 Ann.Cas. 604;Pattison, et al. v. Grant Trust and Savings Co., 195 Ind. 313, 144 N.E. 26;Land v. State, 198 Ind. 343, 151 N.E. 823. Causes 3 to 10, inclusive, are not presented because it does not appear by appellant's brief that, by the admission and refusal of the evidence complained of, the court committed any error. Cause 11 fails for the reason that appellant reserved no exception at the trial and, further, there is no showing that appellant's rights were prejudiced. See Coleman v. State, 111 Ind. 563, 13 N. E. 100;Woodward v. State, 198 Ind. 70, 152 N. E. 277.

[5] Appellant's points 1, 2, 3, 4, 5, and 6 are probably intended to support alleged errors in the admission or exclusion of evidence, but appear as either abstract statements of law or conclusions, and are not in any manner applied to the assignment of error or subdivision thereof, and cannot be considered on appeal. Weidenhammer v. State, 181 Ind. 349, 103 N.E. 413, 104 N.E. 577;Dampier v. State, 194 Ind. 646, 114 N.E. 241;Moore v. State, 199 Ind. 578, 159 N.E. 154.

[6][7] If it could be said that the admission of evidence over objection was before us, the burden was upon appellant to show that he was probably injured in some material respect,and this he has failed to do. Newbauer v. State (Ind. Sup.) 161 N. E. 826;Wolfe v. State (Ind. Sup.) 159 N. E. 545. And, if the exclusion of evidence is...