147 N.E. 765 | Ind. | 1925
The appellant was tried by jury and found guilty of the crime of petit larceny, his punishment fixed at imprisonment in the county jail for a period of sixty days and a fine of $1. A motion for a new trial was made and overruled and judgment was entered against the appellant on the verdict, from which judgment this appeal is taken.
The appellant claims that the court erred in overruling his motion for a new trial, under which assignment of error he insists that the court erred in giving certain instructions of its own motion, and that the court erred in its ruling upon the admission of certain evidence.
The attorney-general insists that no question is presented for the decision of this court because no proper objection was made to the admission of such evidence, and says that rules 1, 2. of the court require that appellant's brief be so prepared that the court can determine the question presented by the assignment of error without an examination of the record and says that when admission of evidence is claimed to be erroneous the brief must show valid grounds of objection and that no question is presented on the instructions given by the court, because they have not been brought into the record.
The fifth clause of Rule 22, of this court, provides that, "a concise statement of so much of the record as fully presents every error and exception relied on referring to pages and lines of the transcript shall be set out in the brief. If the insufficiency of the evidence *394 to sustain the verdict or finding in fact or law is assigned, the statement shall contain a condensed recital of the evidence in narrative form so as to present the substance thereof clearly and concisely. * * * When error is predicated on the giving or refusal of instructions the statement must recite the instructions that were given. Following this statement, the brief shall contain, under a separate heading of each error relied on, separately numbered points, stated concisely, and without argument, together with the authorities relied on in support of them; * * * No alleged error or point, not contained in this statement of points, shall be raised afterward, either by reply brief, or in oral or printed argument, or on petition for rehearing."
An examination of the appellant's brief shows that it wholly fails to comply with these requirements of Rule 22. The instructions complained of are not recited in the brief and are not in the record and there is no condensed recital of evidence in narrative form in appellant's brief. Such brief fails to point out what objections were made by appellant to the questions asked and answers which he claims should not have been admitted. There is no reference in such brief to any place where the objections to the evidence offered, or rulings of the court thereon can be found in the record. So far as it appears the questions were objected to but no reason was stated for such objection. The appellant having wholly failed to comply with Rule 22 of this court, the contention of the attorney-general must be sustained.McCrocklin v. State (1920),
The burden is on the appellant to show reversible error by the record as all presumptions are in favor of the judgment and rulings of the trial court. Bray v. Tardy (1914),
In Kaufman v. Alexander (1913),
In Barker v. State (1918),
In Clokey v. State (1914),
In Koehler v. State (1919),
In Dorsey v. State (1913),
The instructions not being in the record, no question can be considered in regard to them. Goodman v. State (1919),
Judgment affirmed.