Opinion
No. 13,907.
Filed September 27, 1929.
CRIMINAL LAW — Competency of Evidence — Must be Questioned by Motion for New Trial — Otherwise, Competency Admitted on Appeal. — Unless the competency of evidence introduced at the trial is specified as one of the reasons for a new trial, the competency of such evidence is admitted on appeal, and the evidence will be considered in determining the sufficiency of the evidence to sustain the conviction.
From Marion Criminal Court (63,186); James A. Collins, Judge.
Laura Hiner was convicted of maintaining a liquor nuisance, and she appealed. Affirmed. By the court in banc.
Ira M. Holmes, for appellant.
James M. Ogden, Attorney-General, and E. Burke Walker, Deputy Attorney-General, for the State.
The appellant was charged, tried and convicted of maintaining a common nuisance, in violation of § 24 of the act of 1925 (Acts 1925, ch. 48, p. 144, § 2740 Burns 1926), and from the judgment entered, this appeal is prosecuted; the only error assigned and presented is the action of the trial court in overruling her motion for a new trial, the only specifications of which were: (1) That the finding of the court was not sustained by sufficient evidence; and (2) that the finding of the court was contrary to law.
The contention of the appellant is well summarized and stated in her brief herein, wherein, by counsel, she says: "There is no evidence to support the conviction of the appellant for maintaining a common nuisance under the fifth count of the affidavit except the testimony of a police officer . . . which testimony was objected to." The appellant then argues that, as the testimony of this officer was incompetent, there is no evidence to support the conviction.
If the testimony to which reference is made above was incompetent, that matter should, proper objection thereto having been timely made, have been presented to the trial court as one of the specifications in the motion for a new trial; not having been so presented, the competency, on appeal, stands as admitted.
A reading of the testimony as the same is found in the bill of exceptions discloses ample evidence to sustain the finding of guilty.
Affirmed.