Opinion
No. 13,729.
Filed April 18, 1929. Rehearing denied June 21, 1929.
1. APPEAL — Briefs — Appellant's Brief — Causes for New Trial — Omitted from "Points and Authorities." — Causes for a new trial not mentioned by appellant in his "Points and Authorities" are waived. p. 488.
2. APPEAL — Appellant's Brief — Must Show Error in Court's Rulings. — Causes for a new trial predicated on the admission or exclusion of evidence will not be reviewed on appeal where appellant's brief does not show that the court committed error in such rulings. p. 488.
3. APPEAL — Appellant's Brief — Absence of Exception to Court's Ruling — Precludes Review. — Misconduct of jurors assigned as a cause for a new trial will not be considered on appeal where appellant reserved no exception to the ruling of the court in relation thereto. p. 488.
4. APPEAL — Appellant's Brief — Misconduct of Jurors — Prejudicial Error Must be Shown. — Jurors' misconduct during the trial will not require the reversal of the judgment where there is no showing that appellant's rights were prejudiced thereby. p. 488.
5. APPEAL — Appellant's Brief — Abstract Statements of Law — Not Applied to Specific Errors — Not Considered. — Abstract statements of law which are not in any manner applied to the assignments of error, or subdivisions thereof, will not be considered on appeal. p. 488.
6. APPEAL — Admission of Evidence — Harmfulness — Burden of Showing. — The burden is on appellant to show that he was probably injured in some material respect by the admission of evidence over his objection. p. 489.
7. APPEAL — Briefs — Admission or Exclusion of Evidence — Appellant's Brief — Must Point out Where Errors May be Found. — An appellant relying on error in the admission or exclusion of evidence must point out the place in the record where the questions and the rulings of the court may be found. p. 489.
8. APPEAL — Briefs — Points not Supported by Argument or Authority — Not Considered on Appeal. — An alleged error in excluding evidence will not be considered on appeal where appellant's brief gives no reason to support his point and cites no authority supporting it. p. 489.
From Lake Criminal Court; Martin J. Smith, Judge.
Ralph Stengnach was convicted of unlawfully possessing, selling, bartering, etc., intoxicating liquor in violation of § 2717 Burns 1926, and he appealed. Affirmed. By the court in banc.
Herbert S. Barr and Arthur E. Letsinger, for appellant.
James M. Ogden, Attorney-General, and Merl M. Wall, Deputy Attorney-General, for the State.
Appellant was convicted in the city court of the city of Gary on an affidavit charging a violation of the liquor laws of our state in this, to wit, that appellant unlawfully possessed, sold, bartered, exchanged, etc., intoxicating liquor. An appeal was taken by appellant to the criminal court of Lake county. Trial by jury resulted in a verdict of guilty. The court rendered judgment on the verdict. The only error relied upon for reversal is that the court erred in overruling appellant's motion for a new trial.
At the threshold of our consideration of the assigned error, the Attorney-General, on behalf of the appellee, lays down the proposition that appellant's brief does not specifically 1-4. point out any error committed by the trial court; consequently no question is properly presented for review. The motion for new trial contains eleven causes or reasons: (1) The verdict is contrary to law; (2) the verdict is not sustained by sufficient evidence; (3) to (10), inclusive, are predicated upon the admission or refusal to admit certain evidence; and (11) the misconduct of two of the jurors during the trial. Causes 1 and 2 are not mentioned by appellant in his "Points and Authorities," and they are thereby waived. Knapp v. State (1907), 168 Ind. 153, 79 N.E. 1076; Pattison v. Grant Trust, etc., Co., Admr. (1924), 195 Ind. 313, 144 N.E. 26; Land v. State (1926), 198 Ind. 342, 151 N.E. 823; Briese v. State (1926), 198 Ind. 643, 154 N.E. 2. Causes 3 to 10, inclusive, are not presented because it does not appear by appellant's brief that, by the admission and refusal of the evidence complained of, the court committed any error. Cause 11 fails for the reason that appellant reserved no exception at the trial and, further, there is no showing that appellant's rights were prejudiced. See Coleman v. State (1887), 111 Ind. 563, 13 N.E. 100; Woodward v. State (1926), 198 Ind. 70, 152 N.E. 277.
Appellant's points 1, 2, 3, 4, 5 and 6 are probably intended to support alleged errors in the admission or exclusion of evidence, but appear as either abstract statements of law or 5. conclusions, and are not in any manner applied to the assignment of error or subdivision thereof, and cannot be considered on appeal. Weidenhammer v. State (1913), 181 Ind. 349, 103 N.E. 413; Dampier v. State (1924), 194 Ind. 646, 114 N.E. 241; Moore v. State (1927), 199 Ind. 578, 159 N.E. 154.
If it could be said that the admission of evidence over objection was before us, the burden was upon appellant to show that he was probably injured in some material respect, 6, 7. and this he has failed to do. Newbauer v. State (1928), 200 Ind. 118, 161 N.E. 826; Wolfe v. State (1928), 200 Ind. 557, 159 N.E. 545. And, if admission or exclusion of evidence is relied upon, appellant's brief must point out the place in the record where the questions, answers thereto, and ruling of the court thereon, may be found, and this does not appear to have been done. Land v. State, supra.
Point 7 related to the misconduct of the jurors, and has already been discussed. Point 8 is directed to the exclusion of evidence, to wit, the transcript of the trial of appellant 8. in the city court. The appellant gives no reason to support his point, and cites no authority. We call attention, as applicable to this point to Staub v. State (1919), 188 Ind. 683, 125 N.E. 399, and authorities there cited.
In the instant case, a learned judge in the city court, after hearing the evidence, pronounced the appellant guilty; thereafter twelve of his peers, as jurors, came to the same conclusion; next, a learned judge reviewed the whole case when appellant presented his motion for new trial and pronounced judgment; although not called upon to do so, we have reviewed the evidence and find it ample to support conviction. Surely appellant has had his day in court and his liberty will, by affirmance of this judgment, be taken away only by due process of law.
Judgment affirmed.