182 Ind. 510 | Ind. | 1914
This is an appeal from a judgment of conviction based on a violation, as charged, of §8351 Burns 1914, Acts 1907 p. 689, commonly known as the “Blind Tiger” law. The only error assigned and relied on for reversal challenges the action of the court in overruling appellant’s motion for a new trial. Appellee contends that no question is presented by this assignment for the reason that said motion was filed after an appeal had been taken and the cause thus removed from the Delaware Circuit Court. The record shows that the judgment herein was
While it is true that an appeal, properly perfected, removes a cause from the jurisdiction of the trial court and places it in the appellate tribunal, it is also true that, under the present statute governing appeals in criminal cases, no appeal is properly perfected until the required notices are given and the transcript and assignment of errors are 'filed in the office of the clerk of this court. §2217 Burns 1914, Acts 1905 p. 584, §330. Although appellant prayed an appeal to this court on August 25, 1913, and on the same day gave notice to the prosecuting attorney and to the clerk of the trial court of his intention to take such appeal, yet he filed no transcript or assignment of errors in the office of the clerk of this court until November 22, 1913. Until that date the Delaware Circuit Court had jurisdiction to entertain and pass on appellant’s motion for a new trial and'its ruling on said motion is now properly presented for review.
Appellant, in said motion, alleges error on the part of the trial court in overruling his challenge for cause of three jurors, Johnson, Corn and Nixon, who testified on their voir dire examination that they had
Complaint is also made of certain instructions given by the court. Of these, instruction No. 10 told the jurors that they were the judges of the law and the evidence, and concluded as follows: “While the jury are the judges of the law and the facts, yet this does not give you the right to decide the law, regardless of all law, but it is your duty to follow and determine the law as established by the proper tribunals. Under your oaths you are required to determine the law correctly.” This instruction is confusing and limits the jury in the exercise
Other questions are presented which may not arise at another trial and we deem it unnecessary to consider them at this time. Judgment reversed, with instructions to sustain appellant’s motion for a new trial and for further proceedings not inconsistent with this opinion.
Note. — Reported in 107 N. E. 8. As to the disqualification of jurors who have served in the same or in a similar case, see 68 L. R. A. 871. As to the validity of a jury of more than twelve, see 43 L. R. A. 75. See, also, under (1) 12 Cyc. 743; (2) 24 Cyc. 203; (3) 12 Cyc. 647.