Appellant was convicted before a justice of the peace of heavy hauling over a macadam and
Errors have been assigned upon the overruling of appellant’s motion to quash the first count of the affidavit, and also in allowing the same to be reinstated after it had been withdrawn by the State’s attorney. The verdict was rested wholly upon the third count, as the record discloses, which amounted to an acquittal upon the first count, and hence these alleged errors were manifestly harmless. Knox v. State (1905), 164 Ind. 226, 108 Am. St. 291.
It is charged that the court erred in overruling appellant’s motion to quash the third count of the affidavit. The statute forbids heavy hauling over any turnpike, macadam or gravel road, while the same is in a condition to be cut up and injured thereby. The third count charged appellant with hauling an excessive load over “a certain macadam road and gravel road in said county and State, known as road No. 1 of the J. D. Thompson gravel road system, running from the town of Owensville in said county west toward the Wabash river.” It is contended that this count charges two offenses, to wit, hauling over a certain macadam road and a certain gravel road, and is accordingly bad for duplicity. This contention cannot be sustained. It appears clear to us that but one road is described, and but one offense charged; and as no other objection to the affidavit was suggested, we think the motion to quash was rightly overruled.
In the circuit court the prosecuting attorney withdrew the first count of the affidavit upon Avhich appellant had been tried and convicted .in the justice’s court, whereupon appellant filed a plea of former jeopardy and asked to be discharged, His plea was overruled, and. this
The overruling of appellant’s motion for a new trial has been assigned as error. The prosecuting witness, Thomas J. Boren, was permitted to testify that, two or three weeks before the date of the alleged offense for which appellant was on trial, he had warned him not to haul heavy loads over the improved roads, and complaint is made of this action. Boren was superintendent of the road in question, and if, after warning from him, appellant committed the offense of which he was accused, this fact was admissible as tending to show a wilful disregard of the law, and an aggravated offense justifying the assessment of a heavier penalty. The jury, however, assessed the lowest fine authorized under the law, so that if appellant was guilty under the evidence this item of testimony plainly did not harm appellant, even though it had been erroneously admitted.
Appellant was charged with having hauled an excessive load over the road on February 18, 1909; and in the motion for a new trial it is alleged that the court 'erred in permitting Thomas Emerson to testify as to the condition of the road in question on February 19, after having testified that rain had fallen on the night of February 18, that it was snowing on the morning of February 19, and that he had not been on this road on February 18. The record shows that the witness testified, without objection, that on February 19 he traveled over two miles of the road involved, and that water was then standing along the road. Appellant’s counsel then stated that since the witness was
Henry Mauek, a witness for the State, was asked whether the road mentioned was, on February 18, in a condition to be damaged by a load weighing from 2,800 to 3,000 pounds, with a wagon having tires less than three inches in width. Appellant objected, on the ground that the witness had not been over the road on the day named, and was not sufficiently qualified as an expert to give an opinion whether the road would be injured. The question is not commended or approved, but appellant, on appeal, can only avail himself of such specific objections as were stated to the trial court prior to the ruling of which complaint is made. Malott v. Central Trust Co. (1907), 168 Ind. 428.
The witness testified that he had been superintendent during the construction of the road, knew how it was built, when it was completed, and its general condition; that on February 18 he was on the streets of Owensville, where the road terminated; that said streets were improved' in the same manner as the road, and, on account of both rain and snow, were very sloppy. The objections stated were properly overruled. ¥e may add the answer of the witness, which was as follows: “Well, I cannot say whether that would injure the roads or not. The roads were in that sloppy condition, I do not know how much it would take to injure them.” Appellant could have little cause to complain of this answer, if the question were concededly improper.
Appellant complains further of the giving of a certain instruction to the jury. The instruction complained of is not before us, for the reason that it has not been made a part of the record by bill of exceptions, which the law requires in criminal actions. Heath v. State (1910), ante, 296; Ludwig v. State (1908), 170 Ind. 648; Williams v. State, supra; Donovan v. State (1908), 170 Ind. 123.
Appellant further insists that the verdict is not sustained by sufficient evidence, on the particular ground that no evidence was produced showing that the road was in a condition to be cut up and injured by the load hauled by him. On February 18 appellant hauled over the road a load of com, in a wagon with double sideboards and tires one and three-quarter inches in width. The weight of wagon, com and driver was about 3,360 pounds. There was evidence that the ground was thawing from the bottom, and was soft, wet and sloppy on the surface from rain and snow, and that water was standing in the wagon ruts along the road. It is clear that there was not a total absence of evidence on this point; but the evidence was sufficient to war
The judgment is affirmed.