Fleckenstein v. State

165 N.E. 771, 89 Ind. App. 58, 1929 Ind. App. LEXIS 91

Opinion

Remy, J.

The only question sought to be presented by this appeal is the sufficiency of the evidence to sustain the decision of the trial court, by which appellant was convicted of maintaining a common nuisance, within the meaning of §24 of the act of 1925 (Acts 1925 p. 144, §2740 Burns 1926).

The record shows the overruling of appellant’s motion for new trial on “the forty-ninth judicial day of the September term, 1926” of the trial court, and that on the same day an appeal was prayed; but there is no showing that time beyond the term was given to present the bill of exceptions containing the evidence to the judge for approval. The record does show that the bill of exceptions was, in fact, filed November 13, 1926, “the same being the sixth judicial day of the November term of said court.”

Under repeated decisions of this court and the Supreme Court, we must hold that the evidence is not in the record. Flanagan v. State (1922), 192 Ind. 662, 137 N. E. 179; Dietz v. State (1929), ante 45, 165 N. E. 770.

The evidence not being in the record, the sufficiency thereof is not presented.

Affirmed.