True v. State, 28683

• Decision Date: 11 October 1950
• Docket Number: No. 28683,28683
• Citation: 94 N.E.2d 452,228 Ind. 565
• Parties: TRUE v. STATE.
• Court: Indiana Supreme Court

Page 452

94 N.E.2d 452

228 Ind. 565

TRUE v. STATE.

No. 28683.

Supreme Court of Indiana.

Oct. 11, 1950.

Paul V. Paden, Patrick Brennan, South Bend, for appellant.

J. Emmett McManamon, Atty. Gen., Merl M. Wall, Deputy Atty. Gen., for appellee.

GILKISON, Judge.

Appellant was charged, tried by the court, and adjudged guilty of the crime of incest in the St. Joseph Circuit Court. From this judgment the appeal is attempted to be taken.

Only two alleged errors are assigned, thus:

'1. In that the court found the defendant guilty as charged without he ever being identified.

'2. That the court erred when it found the defendant guilty as charged in that it was contrary to the evidence heard by the court as the state's own witness testified on cross-examination, that no sexual act had ever been committed.'

No question is raised by either of these assigned errors. The sufficiency of the evidence to sustain the finding cannot be presented by an independent assignment of error. It must be presented by a motion for new trial, and the action of the trial court in overruling the motion may be assigned as error. When so assigned each cause of the motion for new trial may be presented to this court as a reason for reversal. 4 Watson's Works Practice cl. 10, p. 1716; 2 Gavit Pleading and Practice, § 400, p. 2278, § 419, p. 2332, § 469, p. 2435; Ewbank's Indiana Criminal Law, 2d Ed., § 790, pp. 589, 590; Pritchard v. State, 1920, 190 Ind. 49, 51, 127 N.E. 545; Barnett v. State, 1912, 177 Ind. 461, 462, 97 N.E. 530.

The state has filed a motion to dismiss the appeal because of inaccuracies, omissions and other defects in appellant's brief, and in the record. We do not think the defects noted would justify the dismissal of the appeal, and the motion to dismiss is therefore overruled.

Since no question is presented to this court by the assignment of errors, the judgment of the St. Joseph Circuit Court is affirmed.