Tow v. State
| Decision Date | 11 May 1926 |
| Docket Number | 24,581 |
| Citation | 151 N.E. 697,198 Ind. 253 |
| Parties | Tow v. State of Indiana |
| Court | Indiana Supreme Court |
Rehearing Denied October 7, 1926.
1. CRIMINAL LAW.---Assignments of error on appeal which are not based on any ruling of the trial court are such in name only p. 255.
2. CRIMINAL LAW.---Errors assigned on appeal are waived when not stated in the "Points and Authorities" part of appellant's brief and supported by argument or authorities, p. 255.
3. CRIMINAL LAW.---Statements in motion to set aside the filing of amended affidavit held insufficient to present any question.---Statements in a motion to set aside the filing of an amended affidavit that, at the time of filing, there was no qualified judge, and that the file mark thereon was affixed by another than the clerk, are statements of fact which, though in writing, are insufficient to disturb the record in a cause otherwise regular on its face. p. 255.
4. CRIMINAL LAW.---Accused not entitled to notice of filing of amended affidavit.---An accused is not entitled to notice of the filing of an amended affidavit charging the offense, and the fact that he was not present or notified of such filing is not sufficient reason for setting aside the filing, p 255.
5. INDICTMENT.---Amended affidavit charging other offenses than charged in original affidavit not invalid.---That an amended affidavit on which the prosecution is based charges offenses not charged by the original affidavit and was made by a different person is no ground for quashing the affidavit (2227 Burns 1926, 2065 Burns 1914). p. 256.
6. CRIMINAL LAW.---Filing amended affidavit held harmless.---The filing of an amended affidavit charging the offense before defendant's plea to the original could not have been harmful although it charged several violations of the prohibition law that were not included in the original affidavit, where both charged a sale of intoxicating liquor and the evidence was limited to proof of such sale. p. 256.
7. INDICTMENT AND AFFIDAVIT.---Prosecuting attorney's indorsement on affidavit waived.---Prosecuting attorney's failure to indorse his approval on an amended affidavit as required by 2151 Burns 1926, 1990 Burns 1914, is waived by not presenting the matter to the trial court, p. 257.
8. JUDGES.---Filing of special judge's appointment and oath and entry thereof on order-book before beginning of trial held compliance with the statute.---Since the statute does not specify that the order appointing a special judge and his oath of office shall be filed with the clerk at any specific time, where the appointment was made and he qualified by taking the oath of office before taking any action in the case, an objection to his acting therein was properly overruled although the order for his appointment and his oath of office were not filed with the clerk until the beginning of the trial, p. 257.
9. CRIMINAL LAW.---Objection to filing appointment of special judge on the day set for the trial of the cause instead of on the day the appointment was made will not be considered on appeal in the absence of a bill of exceptions showing that allegations of fact therein were true. p. 259.
10. CRIMINAL LAW.---Motion in arrest of judgment for any other reason than those specified in 2326 Burns 1926, 2159 Burns 1914, presents no question, p. 259.
11. CRIMINAL LAW.---Assigning as error the overruling of a motion in arrest of judgment for reasons other than those stated in the motion presents no error, p. 259.
12. CRIMINAL LAW.---Requirements of brief to question sufficiency of evidence.---An appellant seeking the reversal of a judgment because the finding of the court was not sustained by sufficient evidence must point out in his brief, under the heading "Points and Authorities," wherein the evidence is insufficient to prove some material element of the crime charged, p. 259.
13. CRIMINAL LAW.---A new trial will not be granted for newly-discovered evidence that is merely cumulative or that would not probably change the result, p. 260.
From Lawrence Circuit Court; James B. Wilson, Special Judge.
Henry Tow was convicted of violating the Prohibition Law, and he appeals.
Affirmed.
Robert C. Brown, for appellant.
U. S. Lesh, Attorney-General and O. S. Boling, for the State.
Appellant appeals from a judgment on a finding of guilty of violation of the prohibition law, and assigns as errors the action of the court in: (a) Overruling his motion to set aside the filing of the amended affidavit; (b) overruling his motion to quash the amended affidavit; (c) overruling appellant's written objection to entering upon the trial on the day the cause was specially set for trial; (d) overruling his objection to the filing of the written appointment of the special judge; (e) overruling his motion in arrest of judgment; and (f) overruling his motion for a new trial, because of insufficient evidence to sustain the finding and of newly-discovered evidence.
There were many other assignments of error, some of which were such only in name and not in fact, for the reason that these were not based upon any ruling of the trial court. Other assigned errors were waived because they were not presented by way of propositions or points of law. In this class, herein deemed as waived, no presentation was made other than to set out as a proposition or point the numbered error relied upon without any statement or authority connected with such assignment of error.
Several offenses in violation of the prohibition law are alleged in an amended affidavit composed of three counts. The trial was by the court, which resulted in a general finding of guilty and a judgment upon the finding which imposed a fine and imprisonment. Appellant's objection to the filing of the amended affidavit, as shown by his written motion, is based upon his contention that at the time of the filing of the amended affidavit and the noting on the docket of the court of the amended affidavit filed, there was no qualified judge sitting in the cause, and that the amended affidavit was filed in the absence of the defendant or his counsel, and that the amended affidavit was not marked filed by the clerk of the court, but by some other person who used the rubber stamp of the clerk, and, with the same, stamped the affidavit as filed. Appellant's motion for a change of venue from the judge had been granted and, under the regular statutory procedure, the name of the special judge in this cause who tried the case, remained after the striking out of the names presented by the regular judge by both the state and the defendant. The statement that there was no qualified judge sitting at the time of the filing of the amended affidavit is a question of fact, as is also the statement that the file mark on the amended affidavit was placed thereon by some person other than the clerk, who used the clerk's rubber stamp for such purpose. There is no bill of exceptions in the record to show that any evidence was submitted in proof of these allegations. Neither is the motion itself verified. A statement of fact, although in writing, by a defendant is insufficient to disturb a record in a cause otherwise regular upon its face. The fact that the amended affidavit was filed with the court in the absence of the...
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