Opinion
No. 28,683.
Filed October 11, 1950.
1. CRIMINAL LAW — Appeal — Assignment of Errors — Motion for New Trial — Sufficiency of Evidence — Not Ground for Independent Assignment of Error — Must Be Presented by Motion for New Trial. — On appeal from a criminal prosecution, the sufficiency of the evidence to sustain the finding cannot be presented by an independent assignment of error but should be assigned as a cause for a new trial, the action of the trial court in overruling a motion for a new trial being assigned as error, and each assigned cause of the motion may be presented to the Supreme Court as a ground for reversal. p. 566.
2. CRIMINAL LAW — Appeal — Dismissal of Appeal — Defects Not Sufficient To Justify Dismissal — Motion To Dismiss Overruled. — On appeal from a conviction of incest, the Supreme Court did not find the inaccuracies, omissions and other defects in appellant's brief, and in the record, sufficient to justify a dismissal of the appeal; hence the State's motion to dismiss was overruled. p. 567.
From the St. Joseph Circuit Court, Dan Pyle, Judge.
Leo V. True was convicted of incest and he appeals.
Affirmed.
Paul V. Paden and Patrick Brennan, both of South Bend, for appellant.
J. Emmett McManamon, Attorney General; Charles F. O'Connor and Merl M. Wall, Deputy Attorneys General, for appellee.
Appellant was charged, tried by the court, and adjudged guilty of the crime of incest in the St. Joseph Circuit Court. From this judgment the appeal is attempted to be taken.
Only two alleged errors are assigned, thus:
"1. In that the court found the defendant guilty as charged without he ever being identified.
"2. That the court erred when it found the defendant guilty as charged in that it was contrary to the evidence heard by the court as the state's own witness testified on cross-examination, that no sexual act had ever been committed."
No question is raised by either of these assigned errors. The sufficiency of the evidence to sustain the finding cannot be presented by an independent assignment of error. It must be 1. presented by a motion for new trial, and the action of the trial court in overruling the motion may be assigned as error. When so assigned each cause of the motion for new trial may be presented to this court as a reason for reversal. IV Watson's Rev., Works' Practice, cl. 10, p. 1716; 2 Gavit, Pleading and Practice, § 400, p. 2278; § 419, p. 2332, § 469, p. 2435; Ewbanks' Indiana Criminal Law (2d Ed.), § 790, pp. 589, 590; Pritchard v. State (1920), 190 Ind. 49, 51, 127 N.E. 545; Barnett v. State (1912), 177 Ind. 461, 462, 97 N.E. 530.
The state has filed a motion to dismiss the appeal because of inaccuracies, omissions and other defects in appellant's brief, and in the record. We do not think the defects noted would 2. justify the dismissal of the appeal, and the motion to dismiss is therefore overruled.
Since no question is presented to this court by the assignment of errors, the judgment of the St. Joseph Circuit Court is affirmed.
NOTE. — Reported in 94 N.E.2d 452.