Summers v. State
| Decision Date | 02 November 1933 |
| Docket Number | 25,823 |
| Citation | 187 N.E. 345,205 Ind. 527 |
| Parties | Summers v. State of Indiana |
| Court | Indiana Supreme Court |
1. CRIMINAL LAW---Appeal---Briefs---Waiver of Errors.---Assigned errors are waived by failure to set out any propositions points, and authorities in appellant's brief. (Supreme and Appellate Court Rules, Rule 22.) p. 529.
2. CRIMINAL LAW---Appeal---Instructions---How Brought Into Record.---Instructions in a criminal case can only be brought into the record by bill of exceptions. p. 529.
3. CRIMINAL LAW---Appeal---Review of Evidence.---It is the jury's duty to weigh the evidence and where the verdict is supported by evidence it will not be disturbed on appeal p. 532.
4. CRIMINAL LAW---Alibi---Sufficiency of Evidence.---On the issue of identity of defendant charged with larceny and bank robbery, evidence held to sustain conviction. p. 532.
From Vermillion Circuit Court; Mark W. Lyday, Special Judge.
William Summers was convicted of larceny and bank robbery, and he appealed.
Affirmed.
W. Bert Conley, for appellant.
James M. Ogden, Attorney-General, and E. Burke Walker, Deputy Attorney-General, for the State.
This is a criminal prosecution instituted against the appellant by affidavit in two counts. The first count charging larceny and the second charging bank robbery.
He was tried by a jury, found guilty and sentenced to the Indiana State Prison for fifteen (15) years.
The error assigned is that the court erred in overruling appellant's motion for a new trial.
The appellant set out forty-four (44) reasons for a new trial the first being, that the verdict of the jury is not sustained by sufficient evidence; the second that the verdict is contrary to law; reasons three to forty inclusive, that the court erred in giving and in refusing to give certain instructions. The forty-first is that based upon irregularity in the selection of the jury. The forty-second reason assigned is for misconduct on the part of the jury. The forty-third is for misconduct on the part of the prosecuting attorney, and the forty-fourth for the reason that the court erred in overruling the motion of defendant to withdraw the case from jury for misconduct of prosecuting attorney.
The appellant, in his brief, presents no propositions, points, or authorities upon any reasons assigned for a new trial except upon the 1st, 2nd, 26th, and 30th. The 26th reason for a new trial was for error committed in giving instruction No. 31 tendered by the state and the thirtieth reason was error committed by the court in refusing to give instruction No. 11 tendered by the defendant.
Under rule twenty-two (22) of this court it is provided that the brief of the appellant shall contain, under a separate heading of each error relied upon, separately numbered points, stated concisely and without argument, together with the authorities relied on in support of them. It has been frequently held that a failure to comply with this rule is a waiver of any alleged error complained of. C. C. C. & St. L. R. R. v. Ritchey (1916), 185 Ind. 28, 111 N.E. 913; Baker v. Stehle (1918), 187 Ind. 468, 119 N.E. 4; Chicago R. Co. v. Dinius (1913), 180 Ind. 596, 103 N.E. 652. Therefore those reasons assigned as error by the appellant where no propositions, points, and authorities are set out are waived.
The instructions complained of are not properly in the record. The appellant attempted to bring all the instructions into the record as provided by the code of civil procedure, Burns 1926, Secs. 585 and 586 (§§ 343, 344, Baldwin's 1934). The only method by which instructions in a criminal case can be brought into the record is by a bill of exceptions. This was not done in this case and therefore none of the instructions are properly in the record. Ewbanks' Criminal Law, 2d Ed., Sec. 627. Sharp v. State (1903), 161 Ind. 288, 68 N.E. 286; McNaught v. State (1923), 194 Ind. 209, 142 N.E. 418; Foreman v. State (1929), 201 Ind. 224, 167 N.E. 125.
The only question in this case for this court to consider is whether or not the verdict of the jury is sustained by sufficient evidence.
From the evidence in the case it appears that on March 11, 1929, the Perrysville Bank, Vermillion county, Indiana, was held up and robbed of $ 1,172. The robbery occurred about one o'clock P. M.
Quincy A. Myers, the banker, was in the bank alone. He described the robber to be a man of medium build, with an aviator's hat on, with the ear flaps hanging over his ears, he had on eye glasses as if used in driving a car, and was wearing an overcoat. He told the witness Myers to "put them up" and then pushed a gunny sack through the window and said, "put it in there," and further said, "you didn't get it all." Then he ordered Myers to lie down on the floor and further said, As soon as the robber left the bank, Myers heard a car going but he didn't see it.
Myers was acquainted with the appellant on March 11, 1929, but had not seen him for two or three years. It appears that the appellant had a peculiar voice. Mrs. Summers, wife of the appellant, stated on the witness stand, "You seldom hear a man's...
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