De La Tour v. State

• Decision Date: 03 April 1929
• Docket Number: No. 25550.,25550.
• Citation: 201 Ind. 14,165 N.E. 753
• Parties: DE LA TOUR v. STATE.
• Court: Indiana Supreme Court

201 Ind. 14

165 N.E. 753

DE LA TOUR

v.STATE.

No. 25550.

Supreme Court of Indiana.

April 3, 1929.

Appeal from Criminal Court, Marion County.

Maurice De La Tour was convicted of arson in the second degree and of being an habitual criminal, and he appeals. Affirmed.

H. B. Pike, of Indianapolis, for appellant.

Arthur L. Gilliom, Atty. Gen., and Harry L. Gause, Deputy Atty. Gen., for the State.

GEMMILL, J.

This is an appeal in a criminal cause, in which in the criminal court it was charged by an affidavit that the appellant on or about the 22d day of June, 1927, at and in the county of Marion and state of Indiana, did then and there unlawfully, feloniously, willfully, and maliciously set fire to and burn a certain church of the value of $35,000, and further alleged that the appellant had been three times formerly convicted of felony. He was tried by a jury and found guilty of the crime of arson in the second degree and of being an habitual criminal. The judgment was that, for the crime of arson, in the second degree, he be imprisoned in the Indiana State Prison for a term of not less than one nor more than ten years, and that as an habitual criminal he be imprisoned in said Indiana State Prison for life.

[1] On appeal, he has assigned as error that the court erred in overruling his motion for a new trial. In this motion for a new trial, he has stated six causes for same. The first cause has been waived. The second cause is that the court erred in overruling the defendant's motion to quash the affidavit. This alleged error can only be presented by a direct assignment of error. A motion to quash is no part of the trial upon the merits and cannot be presented for consideration upon appeal, by a motion for a new trial. Smurr v. State (1883) 88 Ind. 504;Hunt v. State (1921) 191 Ind. 406, 133 N. E. 8;Utley v. State (1924) 194 Ind. 186, 142 N. E. 377;Bond v. State (1927) 199 Ind. 484, 158 N. E. 241;Moore v. State (1927) 199 Ind. 578, 159 N. E. 154; Ewbank, Manual of Practice (2d Ed.) § 39.

[2] The third and fourth causes are based on alleged errors in admission of evidence, and the sixth cause is that the verdict is not sustained by sufficient evidence. The appellant has not complied with rule 22 of this court as to the evidence, which provides: The brief of appellant shall contain a short and clear statement disclosing a concise statement of so much of the record as fully presents every error and exception relied on, referring to the pages and lines of the transcript. If the insufficiency of the evidence to sustain the verdict or finding in fact or law is assigned, the statement shall contain a condensed recital of the evidence in narrative form so as to present the substance clearly and concisely. The appellant has not presented for review any question on the evidence. Fox v. State (1917) 186 Ins. 299, 116 N. E. 295;Coff v. State (1921) 191 Ind. 416, 133 N. E. 3;White v. State (1923) 193 Ind. 70, 138 N. E. 754;Moore v. State (1926) 198 Ind. 547, 153 N. E. 402, 154 N. E. 388.

[3] The fifth cause in the motion for a new trial is that the verdict of the jury is contrary to law. Under this specification, the appellant attempts to show that the Habitual Criminal Act (chapter 82,...