176 Ind. 13 | Ind. | 1911
Appellants were indicted under §2508 Burns 1908, Acts 1907 p. 100. The indictment charged that they did on or about March 24, 1908, “unlawfully offer for sale to Charles W. Marshall a certain horse for $165.90, which said horse was then and there diseased in this, to wit: That said horse was then and there broken-winded; that said George L. McCutcheon and Harry W. Martin then and there well knowing said horso to be broken-winded and diseased as aforesaid, did then and there conceal the existence of such disease from said Charles W. Marshall, to whom they were then and there offering said diseased horse for sale, and did then and there and thereby effect the sale of said diseased horse to said Charles W. Marshall, he, said Charles W. Marshall, being then and there ignorant of the existence of said disease; that said George L. McCutcheon and Harry 'W. Martin did then and there by such sale unlawfully obtain $165.90 in money, the personal property of said Charles "W. Marshall.”
Over a motion to quash, and a plea of not guilty, on a trial by a jury, appellants were found guilty and fined, and over motions for a new trial judgment was rendered against each. Separate errors are assigned on the motions to quash the indictment, and on overruling the separate motions for a new trial.
The question of strict construction raised here was also determined in that case against the contention of appellants.
At common law there was no right to file a motion for a new trial, and as it is a right conferred by the statute, one who would avail himself of the right must bring’ himself within it. The trial court could not waive the State's right by permitting the motion to be filed after the thirty days, and hence the motion was unauthorized, and no question was presented under it for determination by the trial court, and none is here presented. Keefer v. State (1910), 174
Nothing remains but to affirm the judgment. Judgment affirmed.