Hatton v. StateHatton v. State
- Reporters:
- , ,
- Before:
- Willoughby
This is an appeal from a judgment in the Warren Circuit Court against the appellant оn conviction for embezzlement. Appellant’s brief says the affidavit was in ten counts. The defendant filed a motion to quash each count severally which was overruled and defendant entered a plea of not guilty to each count.
The jury- fоund the defendant guilty on the fourth count only and after the motion for a new trial was оverruled the defendant was sentenced to imprisonment-in the Indiana State Prison for not less than two years nor more than twenty-one years and fined in the sum of $10 and disfranсhised for two years.
Neither the affidavit nor any count thereof is set forth in appellant’s brief. No evidence is brought into thе record. Appellant’s brief states thаt “the errors relied on for reversal relate chiefly to the instructions given by the сourt of its own motion and given by the court at the request of the prosecuting attоrney and the refusal to give certain instruсtions requested by the defendant, which will be set out more fully under the fifth branch of this brief.”
The fifth brаnch of the brief sets out copies of the instructions given and those tendered аnd refused. There is no copy in apрellant’s brief of the motion for a new triаl nor is the substance thereof stated. It does not appear from said brief that the giving or refusing of any instructions was assigned аs error in the motion for a new trial and it dоes not show that the overruling of a motion for a new trial was assigned as error. It does not show that a bill of exceptions containing the instructions was ever prеsented to the court, signed or filed.
*620 The attorney-general in his brief, points out thesе defects and claims that on account thereof no question is presented to this court for review. The contention of the attorney-general must prevаil. See, Supreme Court Rule 22; White v. State (1923), 193 Ind. 70, 138 N. E. 754.
The burden is upon the appellant to present fоr review a record which affirmatively shows that the error complained of wаs committed and where neither the motion for a new trial nor its substance is set out in appellant’s brief all questions sought to be presented thereby are waived. Tongret v. Carlin (1905), 165 Ind. 489; Scott v. State (1911), 176 Ind. 382; State, ex rel., v. Birden, Trustee (1918), 187 Ind. 466; Epstein v. State (1920), 190 Ind. 693; Ewbank’s Manual (2d ed.) §181.
Judgment affirmed.