Worrell v. State

• Citation: 91 Ind.App. 259,171 N.E. 208
• Decision Date: 09 April 1930
• Docket Number: No. 14061.,14061.
• Parties: WORRELL v. STATE.
• Court: Court of Appeals of Indiana

91 Ind.App. 259

171 N.E. 208

WORRELL

v.STATE.

No. 14061.

Appellate Court of Indiana, in Banc.

April 9, 1930.

Appeal from Delaware Circuit Court; Clarence W. Dearth, Judge.

Arley Worrell was convicted of unlawful possession of intoxicating liquor, and he appeals.

Affirmed.

Clarence E. Benadum, of Muncie, for appellant.

Arthur L. Gilliom, Atty. Gen., and Edward J. Lennon, Jr., Deputy Atty. Gen., for the State.

NEAL, P. J.

Appellant was found guilty of the unlawful possession of intoxicating liquor pursuant to Burns' Ann. St. 1926, § 2717, by a jury, and his punishment fixed by fine in the sum of $1,000, to which was added a jail sentence of 60 days.

[1][2] The appellant filed his verified motion to “quash and vacate the affidavit for search warrant, search warrant, return thereon, and to suppress the evidence,” which motion was overruled and exceptions taken. He also filed his motion to quash the affidavit, which motion was also overruled and exception given. Appellant filed motion for a new trial, which motion was likewise overruled and exception given. Appellant assigns as error: (1) Overruling the motion to quash the affidavit for search warrant and to suppress the evidence; (2) overruling the motion to quash; (3) overruling the motion for a new trial. And the several causes specified thereunder are: (a) The verdict of the jury is not sustained by sufficient evidence; (b) the verdict is contrary to law; (c) separate error in the giving of each of fourteen instructions by the court on its own motion; (d) error in the admission of several items of evidence; (e) error in overruling the motion to suppress.

In an examination of appellant's brief the division thereof entitled “Points and Authorities” only one alleged error is called to the attention of the court to wit: “The court erred in overruling the appellant's motion to quash and vacate affidavit for search warrant, search warrant, return thereon, and to suppress the evidence.” We cannot ascertain whether the several “Points and Authorities” made under the proposition on the motion to suppress relate to the alleged error in overruling the motion to suppress which is made an independent assignment of error, or whether it is directed to the cause, under the motion for a new trial, that the court erred in overruling the motion to suppress. It has repeatedly been decided by the Supreme and Appellate Courts that the overruling of a motion to suppress is a proper cause for a new trial and cannot be made an independent assignment of error in this court. Nelson v. State (1928) 200 Ind. 292, 163 N. E. 95;Papa v. State (1929) 89 Ind. App. 117, 165 N. E. 773. The alleged errors to wit: Overruling the motion to quash, in the giving of each of (14) instructions by the court on its own motion; that the verdict is not sustained by sufficient evidence; that the verdict is contrary to law, and separate error in the admission of the several items of evidence not having been presented by appellant under “Points and Authorities,” in his brief, are deemed to have been waived. Stengnach v. State (Ind. App. 1929) 165 N. E. 919;Tow v. State (1926) 198 Ind. 253, 151 N. E. 697;Thompson v. State (1928) 200 Ind. 373, 163 N. E. 595;Partlow v. State (Ind. Sup. 1929) 166 N. E. 651;Johnson v. State (Ind. Sup. 1929) 167 N. E. 531.

[3][4] It does not appear from the appellant's brief that any...