Gilmore v. State

97 N.E. 422, 177 Ind. 148, 1912 Ind. LEXIS 10

• Court: Indiana Supreme Court
• Decided: February 14, 1912
• Docket: No. 22,019
• Status: Published

Opinion

Monks, J.

Appellant, a druggist, was tried and convicted of the offense of selling one quart of whisky, in violation of law. The only errors assigned call in question the action of the court in overruling (1) “the motion to quash each count of the indictment, and (2) the motion for a new trial. ’ ’

1. When a motion to quash an indictment is overruled by a court in this State, it is settled that unless said motion states one or more of the grounds for quashing an indietment specified in §2065 Burns 1908, Acts 1905 p. 584, no question as to the correctness of such ruling of the court can be presented on appeal. Scott v. State (1911), 176 Ind. 382, 96 N. E. 125; Hawks v. State (1911), 176 Ind. 602, 96 N. E. 593.

The record in this case does not show that any ground was assigned in the motion to quash the indictment, and for this reason no question as to the correctness of the action of the court in overruling said motion is presented by the record.

2. The Attorney-General insists that no question is presented as to the action of the court in overruling appellant’s motion for a new trial, for the reason that “appellant has not set out said motion or the substance thereof in his brief as required by clause five of rule 2” of this court.

It has uniformly been held that if appellant does not set out in his brief the motion for a new trial or the substance thereof, or grounds assigned therefor, relied on for reversal, no question as to the correctness of the court’s action in overruling said motion is presented. Scott v. State, supra, and eases cited. See, also, Hawks v. State, supra.

Judgment affirmed.

Note.—Reported in 97 N. E. 422. See, also, under (1) 22 Cyc. 417; (2) 12 Cyc. 877.