Adkins v. State

123 N.E.2d 891, 234 Ind. 81, 1955 Ind. LEXIS 116

• Court: Indiana Supreme Court
• Decided: January 27, 1955
• Docket: 29,200
• Status: Published

Opinions

Bobbitt, J.

Appellant was charged by indictment with driving a motor vehicle while under the influence of intoxicating liquor in violation of Acts 1939, ch. 48, §52, p. 289, being §47-2001, Bums’ 1952 Replacement, tried by the court without the intervention of a jury, found guilty, fined in the sum of $25 and costs, and his driver’s license suspended for a period of one year.

The sole question presented is the sufficiency of the evidence to support the finding of the trial court.

Appellee asserts that neither of the grounds assigned in the motion for a new trial is proper and, therefore, no question is presented by their assignment.

The grounds assigned are:

(1) That the finding and judgment of the Court is contrary to law.

(2) That the finding and judgment of the Court is not sustained by sufficient evidence.

Both this court and the Appellate Court have consistently held that causes for a new trial¹ stated in the exact or similar language as that employed by appellant in his motion for a new trial are unauthorized and are not sufficient to comply with the statute² authorizing a new trial in civil proceedings. Lynch v. Milwaukee Harvester Co. (1903), 159 Ind. 675, 676, 65 N. E. 1025; Migatz v. Stieglitz (1906), 166 Ind. 361, 364, 77 N. E. 400; Hall v. McDonald (1908), 171 Ind. 9, 18, 85 N. E. 707; Southern Express Co. v. Schurz (1913), 55 Ind. App. 213, 215, 103 N. E. 667; Holtzman v. Smith (1919), 69 Ind. App. 434, 122 N. E. 18; Federal Life Ins. Co. v. Maxam (1919), 70 Ind. App. 266, 286, 117 N. E. 801; Greeson v. Sloan (1933), 97 Ind. App. 687, 688, 187 N. E. 841; Lowe’s Rev. Works’ Indiana Pract., Vol. 4, §61.84, p. 70.

This rule has also been applied to similar language used in stating a cause for a new trial under clause 9 of the section of the statute³ providing for a new trial in criminal cases. Volderauer v. State (1924), 195 Ind. 415, 421, 143 N. E. 674; See also Utley v. State (1924), 194 Ind. 186, 142 N. E. 377; Koby v. State (1923), 193 Ind. 107, 136 N. E. 840; Lytle v. State (1920), 189 Ind. 690, 128 N. E. 836; Inskeep v. Gilbert (1910), 174 Ind. 726, 93 N. E. 8.

The statute⁴ specifically sets out the causes which may be assigned for a new trial and those stated by appellant in his motion herein are not among the grounds specified by statute. This is sufficient ground upon which to affirm the judgment of the trial court in this case. However, an examination of the record clearly shows that the evidence is sufficient to sustain the finding of the court, and the judgment should also be affirmed on the merits.

An examination of the record shows the following evidence from which the trial court might properly have found that appellant was guilty as charged -in the indictment.

. The state policeman who made the arrest testified that he observed appellant driving at the place charged in the indictment at an unreasonably high rate of speed, that he followed appellant’s car, attempting to drive alongside and motion appellant to stop, that appellant increased his speed and pulled his car over to the' center of the highway; and that he stopped appellant at the next street intersection.

. This witness further testified that when appellant got out of his car his walk was unsteady, his eyes were blurry, and he could tell from the odor of defendant’s-appellant’s breath that he had been drinking; and that in his -opinion defendant-appellant “had too much to. be out there in an automobile for the safety of other people.”

A witness for the defense testified that he had been drinking with appellant in a tavern on the afternoon of, and prior to the time of his arrest. This téstimony was supported by appellant’s own admission.

We believe this evidence is sufficient to sustain the finding of the trial court, and the judgment should be affirmed- See: Shorter v. State (1954), 234 Ind. 1, 122 N. E. 2d 847.

Judgment affirmed.

Gilkison, C. J., and Levine, J., concur.

Achor, J., concurs with opinion in which Emmert, J., concurs.

1 . Acts 1881 (Spec. Sess.), eh. 38, §420, p. 240, being §2-2401, Burns’ 1946 Replacement, Clause 6, provides as follows:

“That the verdict or decision is not sustained by sufficient evidence, or is contrary to law.”

2 . Section 2-2401, Burns’ 1946 Replacement, supra.

3 . Acts 1905, ch. 169, §282, p. 584, being §9-1903, Burns’ 1942 Replacement.

4 . Section 9-1903, Burns’ 1942 Replacement, supra.