180 N.E. 183 | Ind. | 1932
This is an appeal from a judgment of the Lake Criminal Court entered on June 29, 1931, in a proceeding, by affidavit, brought by appellee under the *342 provisions of §§ 2717 and 2740 Burns 1926, in which appellant was found guilty of two offenses, to wit, (1) unlawful possession of intoxicating liquor, and (2) maintaining a nuisance.
On the day set for trial, appellant filed a petition to suppress and reject certain evidence which had been obtained by a search of appellant's premises by virtue of a search warrant. Appellee filed an answer in general denial to appellant's petition to suppress, and the court, after hearing evidence, overruled said motion. Trial was had before the court, resulting in a finding of guilt on both counts of the affidavit. Appellant's motion for a new trial was overruled.
On appeal, appellant assigns as an independent error the overruling of his motion to suppress and reject evidence. It has been held by this court that a motion to suppress and 1. reject evidence is properly presented for review by a motion for a new trial, under the first subdivision of § 2325 Burns 1926, Acts 1905 p. 584, and not as an independent error. Chappelle v. State (1925),
Appellant's first reason for a new trial is stated thus: (1) "Error of law occurring at the trial in this, to wit: That the court denied defendant's petition to suppress and reject 2. certain evidence." It is urged that the question is properly presented by this assignment of error in his motion for a new trial. Appellee contends that such an assignment presents no question *343
for review and cites Biddle v. State (1927),
Appellant's assignment of errors contains nine specifications, and the first specification is that the court erred in overruling appellant's motion for a new trial. This is the only error properly assigned by appellant in his assignment of errors. *344
We have discussed appellant's first specification in his motion for a new trial. Appellant's second, third and fourth specifications in his motion for a new trial relate to 3. certain questions asked by the prosecuting attorney. The first question objected to was as follows: "Did you search the premises of the defendant at 3736 Euclid Avenue, East Chicago, Indiana?" The second question: "Did you have a search warrant at that time?" And the third question was: "As such deputy did you and Harold F. Miner and another deputy serve a search warrant on the premises of the defendant at 3736 Euclid Avenue in this county?" Appellant also complains of the introduction of certain liquor found on his premises in evidence. Appellant does not set out in his motion for a new trial his reasons for objecting to the questions or to the introduction in evidence of the liquor found, nor to the answers of the witness to such questions. It was said by this court in the case ofGreer v. State (1929),
Appellant complains in his fifth specification for a new trial of a remark made by the court to the effect that: "The court is tired of ruling on those objections, let the record show 4, 5. that the court will disregard those objections that mean nothing." It is insisted by the State that no question is presented by this specification in appellant's motion for a new trial, as it is not in the record by a bill of exceptions. The record outside the motion for a new trial does not show such an incident as that recited occurred. Matters of this character cannot be shown by mere recitals in the motion for a new trial, but must be brought into the record by a bill of exceptions.Heath v. State (1910),
Appellant's sixth and seventh grounds for a new trial question the sufficiency of the evidence to support the verdict. Inasmuch as appellant makes no attempt to set out the evidence or 6. the substance thereof in his brief, he thereby waives any error, if any, presented thereby. Oelfke v. State
(1923),
No reversible errors being shown, this case is affirmed. *346