Opinion
No. 29,171.
Filed February 10, 1955.
APPEAL — Dismissal — Interlocutory Order — Granting of Motion for New Trial — Motion for Discharge. — After the return of a verdict finding defendant guilty as charged, appellant filed what he designated as a motion for a discharge. Later, the Court sustained motion to set aside the verdict and upon Court's own motion granted a new trial. Appellant then filed motion to reconsider his motion for discharge which was overruled and this appeal followed. The granting of a new trial is not a final judgment, and no statute or rule of Court authorizes an appeal from such interlocutory order.
From the Fulton Circuit Court, Kline D. Reed, Judge.
Wilbur L. Harshberger was charged by affidavit with driving a motor vehicle under the influence of intoxicating liquor and was found guilty. Appellant filed motion for discharge and after the court set aside verdict and granted a new trial, appellant's motion to reconsider ruling on motion to discharge was overruled and he appeals.
Appeal dismissed.
Harry E. Vernon, of Goshen, for appellant.
Edwin K. Steers, Attorney General, Owen S. Boling and Richard M. Givan, Deputy Attorneys General, for appellee.
The State of Indiana has filed a motion to dismiss this appeal, which must be sustained.
On June 2, 1952, the State of Indiana filed an affidavit charging appellant with the misdemeanor of operating a motor vehicle while he was under the influence of intoxicating liquor. He entered a plea of not guilty, and after submission to a jury, it returned a verdict as follows: "We, the jury, find the defendant, Wilbur L. Harshberger, guilty as charged in the affidavit, and find his age to be 34 years."
On October 3, 1953, appellant filed what he designated as a motion for a discharge.
On November 23, 1953, the court made the following entry:
"Defendant in Court by counsel and defendant's motion to set aside verdict is now sustained and defendant's motion for discharge is now overruled and upon the Court's own motion a new trial is granted in this cause."
Later, appellant filed a motion to reconsider the ruling on his motion for discharge, which was overruled. Thereafter appellant filed his praecipe for an appeal.
It is not necessary now to decide whether the procedure adopted by appellant or by the court was proper, but the court did grant a new trial. This is not a final judgment from which an appeal lies. State v. Spencer (1883), 92 Ind. 115; 2 Gavit, Ind. Pl. Pr. § 468, p. 2430; Flanagan, Wiltrout Hamilton, Ind. Trial App. Pr. § 2158, p. 36. No statute or rule of court authorizes an appeal from such an interlocutory order.
Appeal dismissed.
Gilkison, C.J., Bobbitt, Levine and Achor, JJ., concur.
NOTE. — Reported in 124 N.E.2d 211.