Tow v. State
| Decision Date | 11 May 1926 |
| Docket Number | No. 24581.,24581. |
| Citation | 198 Ind. 253,151 N.E. 697 |
| Parties | TOW v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal 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, of Salem, for appellant.
U. S. Lesh, Atty. Gen., and Owen S. Boling, of Indianapolis, for the State.
Appellant appeals from a judgment on a finding of guilty of violation of the Prohibition Law (Laws 1917, c. 4), 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.
[1][2] 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.
[3][4] 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 therein 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 defendant or his counsel is not shown to have been harmful, even if taken for granted without proof that defendant and his counsel could have been notified and could have appeared when the amended affidavit was offered to be filed. We cannot see how it would be any more harmful to a defendant to have an amended affidavit filed in his absence than it is to have an original affidavit filed in his absence, which is the custom almost without exception. One charged with an offense by way of an indictment is not given notice to come into court so that he may be there to object to its filing when returned by the grand jury. The same rule must apply to an affidavit which charges an offense. This error as presented by appellant's brief is not well taken, and the motion was properly overruled.
[5][6][7] The motion to quash the amended affidavit is based upon the alleged fact that the second and third counts of the amended affidavit state offenses which were not charged against the defendant by the original affidavit, and for the further reason that the amended affidavit was not by the same person who made the original affidavit. This is not a reason why an affidavit which charges an offense should be quashed. Section 2065, Burns 1914. However, upon the merits of appellant's contention, he has not shown that he has been harmed because an amended affidavit has been filed with the court before his plea to the original affidavit, which amended affidavit charged several offenses against the prohibition law, whereas the original affidavit charged but one offense. The original affidavit and the second count of the amended affidavit charged the sale of intoxicating liquor. The only evidence produced upon the trial in support of the crimes charged was that appellant unlawfully sold intoxicating liquor. There was no evidence whatever of the commission of the other offenses charged. It has heretofore been held that an amended affidavit need not...
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