Webster v. State
| Decision Date | 19 December 1935 |
| Docket Number | 26491 |
| Citation | 198 N.E. 781,209 Ind. 274 |
| Parties | WEBSTER v. STATE |
| Court | Indiana Supreme Court |
Proceeding by the State against Dilver Webster. From the judgment, defendant appeals. Motion to dismiss the appeal.
Appeal dismissed.
Appeal from Ohio Circuit Court; Wm. D. Ricketts, Judge.
Holder & Thompson and Kops & Noelker, of Batesville, for appellant.
Philip Lutz, Jr., of Boonville, and Caleb J. Lindsey, of Indianapolis, for the State.
The state of Indiana, appellee, by Philip Lutz, Jr., Attorney General, files petition and motion to dismiss appellant's appeal upon two grounds as follows: (1) That the motion for a new trial was not filed within the time prescribed by the statutes. (2) The transcript in the case was not filed in the Supreme Court within the time allowed therefor after the appeal was taken.
The record shows that the transcript was filed in time, and the Attorney General was clearly in error as to this assignment.
The record shows that the verdict was returned on March 21, 1934, and that the motion for a new trial was filed April 21, 1934. The statute, section 9-1903, Burns' 1933 provides that the motion for a new trial must be filed within thirty days from the date of the verdict or finding. In the computation of the time, the day of the return of the verdict is not counted, but the last day is included. Section 2-4704 Burns' 1933. It is seen that more than thirty days expired from the time of the return of the verdict, and therefore the motion for a new trial was not filed within the time prescribed by the statute, and no question, therefore, is presented upon the action of the court in overruling the same. The only assignment of the appellant is that the court erred in overruling appellant's motion for a new trial. McCutcheon v. State (1911) 176 Ind. 13, 93 N.E. 545; Keefer v. State (1910) 174 Ind. 588, 92 N.E. 656.
The attorneys for the appellant strenuously and ably insist that this court should disregard the time limit as prescribed by the statute in filing a motion for a new trial and consider the appeal on its merits. At common law there was no right to file a motion for a new trial, and, as it is a right conferred by statute, one who would avail himself of the right must bring himself within it. As said in the case of Ward v. State (1909) 171 Ind. 565, 86 N.E. 994, 995 ...
To continue reading
Request your trial
-
Anderson v. State
...by this court, it must have been filed not more than thirty (30) days after the finding. Walker v. State, supra; Webster v. State, 1935, 209 Ind. 274, 198 N.E. 781. The record does not disclose the appellant was denied any constitutional right, and the finding of the court in each case is s......