Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

**

of the cause, but does not adjudicate the ultimate rights of the parties or finally put the case out of court. * An order which does not settle and conclude the rights involyed in the action, and does not deny to the party the means of further prosecuting or defending the suit, is not therefore such a final judgment as to be a proper subject of appeal." Judgments, § 21. In Elliott's Appellate Procedure, § 83, it is said: "No order is final in such a sense as to constitute a final judgment, unless it disposes of the main case so far as there is power in the trial court to decide upon the questions presented by the issues, no matter how clearly and decisively the order may indicate what the ultimate judgment will be. Until there is an ultimate judgment the case is not finally disposed of, inasmuch as the trial court may change its rulings, award a venire de novo, grant a new trial, or make some such order, notwithstanding the fact that in other rulings it may have clearly manifested a purpose to carry its rulings into the ultimate ruling or decree." There are cases in which orders have been treated as final for the purpose of an appeal where the effect was to terminate the controversy, although some further order essential to its enforcement remained to be done, or where the order disposed of some distinct branch of the suit. Cases like these sometimes present questions as to the character of the judgment which are difficult of solution, but they stand as exceptions to the general rule and need not now concern us, for we are persuaded that it is the general rule which governs this

case.

It must be remembered that neither the filing of the instrument of appropriation nor the payment of the award into the clerk's office constitutes, in the event an appeal is taken, an appropriation of the interests sought to be condemned. In such a case no title vests, and the company which is seeking to condemn has only the rights of a licensee under the statute to hold possession and proceed with the construction of the road pending litigation. Cleveland, etc., R. Co. v. Nowlin, 163 Ind. 497, 72 N. E. 257; Sowers v. Cincinnati, etc., R. Co., 162 Ind. 676, 71 N. E. 134. The proceeding, after the filing of the exceptions to the award, continues in fieri until the disposition of the appeal (Midland R. Co. v. Smith, 125 Ind. 509, 25 N. E. 153), and, in respect to regularity, is subject to defeat both on the law and on the facts. McMahon v. Cincinnati, etc., R. Co., 5 Ind. 413; Swinney v. Ft. Wayne R. Co., 59 Ind. 205; Lake Shore, etc., R. Co. v. Cincinnati, etc., R. Co., 116 Ind. 578, 19 N. E. 440. It may be, since the proceeding is a special statutory one, that there is no right, on exceptions to the award, to relitigate the question of location (see Morrison v. Indianapolis, etc., R. Co. [Ind. Sup.] 76 N. E. 961; Lake Shore, etc., R. Co. v. Cincinnati, etc., R. Co. supra); but it is sufficient to make

the order fixing the point of crossing interlocutory that the main case is not disposed of, and that there remains to the defendant the right to wage a contention which may overthrow the proceedings on which the order of location is based. In such a proceeding there can in the nature of things be but one final judgment, using the term in the sense in which it is used in the general statute concerning the right of appeal, and that judgment is the one which disposes of the proceeding as it is pending on exceptions to the award. This was the conclusion reached by the Appellate Court in Wabash R. R. Co. v. Cincinnati, etc., R. Co., 29 Ind. App. 546, 63 N. E. 325, wherein an appeal was sought to be prosecuted from an order fixing the point of crossing 'as between two steam railroads. While the statute with which we have to deal expressly gives the right of appeal from the order of location, yet this appeal was irregularly taken and must be dismissed, because appellant has failed to comply with the statute which governs the taking of appeals from interlocutory orders. Section 659, Burns' Ann. St. 1901; Natcher v. Natcher, 153 Ind. 368, 55 N. E. 86; Elliott, App. Pro. § 109; Ewbank's Manual, § 92.

Appeal dismissed.

(167 Ind. 179)

PADGETT v. STATE. (No. 20,828.) (Supreme Court of Indiana. Oct. 9, 1906.) HOMICIDE-ASSAULT WITH INTENT TO KILLAFFIDAVIT FOR PROSECUTION ARREST OF JUDGMENT.

[ocr errors]

An affidavit alleging an assault and battery with intent to kill W., but not alleging the person assaulted, does not state a public offense, so that, under Acts 1905, p. 646, c. 169, § 283, a motion in arrest of judgment is properly granted.

[Ed. Note.-For cases in point, see vol. 26, Cent. Dig. Homicide, § 203.]

Appeal from Circuit Court, Daviess County; H. Q. Houghton, Judge.

Charles Padgett appeals from a conviction. Reversed and remanded.

Jno. H. Spencer and Alvin Padgett, for appellant. C. W. Miller, Atty. Gen., W. C. Geake, C. C. Hadley, and H. M. Dowling, for appellee.

JORDAN, C. J. This prosecution was commenced on February 5, 1906, by the state of Indiana, through its proper prosecuting attorney, by filing an affidavit in the lower court, wherein it was sought to charge appellant with having committed the crime of assault and battery with intent to commit murder. He waived an arraignment and entered a plea of "not guilty." There was a trial by jury, and a verdict returned, finding him guilty of assault and battery with intent to kill, as charged in the affidavit, and that he was of the age of 28 years. He filed a written motion in arrest of judgment, alleging

therein that the facts stated in the affidavit | do not constitute a public offense. This motion, over the exceptions and objections of appellant, the court denied, and thereupon rendered a judgment upon the verdict, senten cing the appellant to be committed in the Indiana Reformatory Prison for a period of not less than 2 nor more than 14 years, and that he be fined in the sum of $5, etc. From this judgment he prosecutes this appeal, assigning that the court erred in overruling the motion in arrest of judgment.

The affidavit upon which appellant was tried and convicted, omitting the formal parts, is as follows: "Harry Wolfe swears that Charles Padgett, late of the county of Daviess, state of Indiana, on or about the 2d day of February, 1906, did then and there, at and in said count and state aforesaid, unlawfully, felonious, purposely and with premeditated malice, and in a rude, insolent, and angry manner, unlawfully and feloniously touch, cut, beat, and strike with his fist, and with a knife, which the said Charles Padgett then and there had and held in his hand, with intent then and there and thereby him, the said Harry Wolfe, unlawfully, purposely, and with premeditated mafice to kill and murder, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Indiana." It is evident that the crime which the pleader attempted to charge in this affidavit was that of an assault and battery with an intent to commit murder in the first degree. It is certainly manifest that the affidavit is fatally deficient for the reason that it wholly fails to charge the commission of assault and battery upon any person. It merely alleges that Charles Padgett, late of Daviess county, state of Indiana, on the date named, did then and there, at and in said county and state, "unlawfully, feloniously, purposely and with premeditated malice, and in a rude, insolent and angry manner, unlawfully and feloniously touch, cut, beat and strike with his fist, and with a knife, * with the intent then and there and thereby him, the said Harry Wolfe, unlawfully, purposely and with premeditated malice to kill and murder." The mere fact that the accused did "in a rude, insolent and angry manner, touch, cut, beat, and strike with his fist and with a knife," falls far short of charging an assault and battery, without showing that some person named was assaulted, "touched," "cut," and "beat" by the accused. The fact that he perpetrated these acts "with the intent thereby him, the said Harry Wolfe, purposely to kill and murder" is certainly not sufficient to show that the latter was the person assaulted, unless we resort to surmise or conjecture, and this we are not permitted to do.

By section 354 of an act concerning public offenses, approved March 10, 1905 (Acts 1905, p. 661, c. 169), an assault and battery is defined as follows: "Whoever, in a rude, inso

lent, or angry manner, unlawfully touches another, is guilty of an assault and battery, and, on conviction, shall be fined," etc. Section 352 of the same act provides that: "Whoever perpetrates an assault or an assault and battery upon any human being, with intent to commit a felony, shall, on conviction, be imprisoned in the state prison not less than two years, nor more than fourteen years, and be fined not exceeding two thousand dollars." Section 283 of the same statute provides that a motion in arrest of judgment may be granted by the court "where the facts stated in the indictment or affidavit do not constitute a public offense." It is contended by the state that the infirmity of the affidavit in question is of such a character that it was cured by the verdict of the jury, and that therefore the motion in arrest was properly denied. It is true that if the affidavit could be said to contain all of the essential elements constituting a public offense, then, although the facts therein alleged may have been defectively stated, nevertheless, under the circumstances the pleading would be sufficient to withstand a motion in arrest of judgment. Lowe v. State, 46 Ind. 305; Greenley v. State, 60 Ind. 141; Graeter v. State, 105 Ind. 271, 4 N. E. 461; Chandler v. State, 141 Ind. 106, 39 N. E. 444.

It is settled that uncertainties existing in a criminal pleading in the statement of the facts constituting the offense can only be assailed by a motion to quash and not by one in arrest of judgment. Stewart v. State, 113 Ind. 505, 16 N. E. 186; Chandler v. State, supra. But where the pleading does not contain all of the essential elements constituting a public offense, either a motion to quash or one in arrest of judgment must be sustained. Hoover v. State, 110 Ind. 349, 11 N. E. 434; Hanrahan v. State, 57 Ind. 527; Nichols v. State, 127 Ind. 406, 26 N. E. 839. Section 1832, Burns' Ann. St. Supp. 1905, the same being section 191 of the act of 1905, supra, provides that the indictment or affidavit is sufficient if it can be understood therefrom."

*

4th. That the offense charged is clearly set forth in plain and concise language, without unnecessary repetition. 5th. That the offense charged is stated with such degree of certainty that the court may pronounce judgment upon a conviction according to the right of the case." The next section provides that "no indictment or affidavit shall be quashed, nor judgment or other proceedings be stayed or arrested, or in any manner affected for any of the following defects," enumerating certain defects, "or for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits." Under these provisions of the statute, an indictment or affidavit is required to charge the offense with reasonable certainty. Waggoner v. State, 155 Ind. 341, 58 N. E. 190, 80 Am. St. Rep. 237.

The injured party, or any other person, whose name it is essential to set out in charging an offense must, if known, be stated in the indictment or affidavit with certainty. This requirement is necessary in order to identify or give certainty to the transaction or offense upon which the pleading is based. In other words, the law exacts that the name of the person upon whom the offense was committed shall be given in the pleading in order that the accused party may be fully advised in respect to the crime which he is charged to have committed. 1 Archibald's Criminal Procedure and Pleading, p. 265 (*79); Black v. State, 57 Ind. 109; McFarland v. State, 154 Ind. 442, 56 N. E. 910, and cases there cited; McBeth v. State, 50 Miss. 81; State v. Bitman, 13 Iowa, 485; Ranch v. State, 5 Tex. App. 363; Gillett's Criminal Law, § 129. In fact, the name of the injured party is an essential element in the description of a public offense, and the failure to disclose who such person was, in the absence of a sufficient excuse being stated, is a fatal omission, and renders the pleading bad on a motion to quash or in arrest of judgment. McFarland v. State, 154 Ind. 442, 56 N. E. 910, and cases there cited; McLaughlin v. State, 52 Ind. 279. Certainly then, when tested by the authorities cited, there can be no sufficient charge of an assault and battery, or of an assault and battery with the intent to commit a felony, without giving or stating, if known, the name of the injured person, for in a criminal pleading nothing can be taken by intendment and aii reasonable doubts which may arise upon the averments therein must be solved in favor of the accused party. Funk v. State, 149 Ind. 338, 49 N. E. 266.

It is evident for the reasons stated that the affidavit in this case is fatally defective. and the court erred in overruling the motion in arrest of judgment, for which error the judgment is reversed and the cause remanded, with instructions to the lower court to sustain said motion. The clerk will issue the proper warrant for the return of appellant to the sheriff of Daviess county.

(167 Ind. 184)

HOWARD v. ADKINS. (No. 20,863.) (Supreme Court of Indiana. Oct. 10, 1906.) 1. APPEAL AND ERROR-Briefs.

An attempt in good faith to comply, and substantial compliance, with the Supreme Court rules relative to briefing, is sufficient. [Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3091.] 2. FRAUDS, STATUTE or-WRITING-DESCRIPTION OF LAND-PAROL EVIDENCE.

Where the description of land in a contract governed by the statute of frauds is consistent, but incomplete, and its completion does not require contradiction or alteration, nor that a new description should be introduced, parol evidence is admissible to complete the description and identify the property.

[Ed. Note.-For cases in point, see vol. 23, Cent. Dig. Frauds, Statute of, § 375.]

3. SAME-SURROUNDING CIRCUMSTANCES.

Parol evidence may be given of the situation and relation of the parties and the surrounding circumstances in the construction of a contract governed by the statute of frauds. 4. SAME-COMPLAINT-DESCRIPTION OF LAND. A complaint seeking to recover for the breach of a contract to convey land alleged that the land was described as "120 acres of land more or less, owned by H. of Dana, Ind., and located about three miles west of Winamac, Pulaski county, Ind.. in sections 17, 18, township 30 N. of range 2 W." Held, that this description was prima facie sufficient, and the complaint need not allege that defendant, H., had only one tract answering such description; but if he in fact had more than one tract answering the description, thereby destroying the means of identifying the property, it was a matter of defense.

5. SAME-WRITING-CONSIDERATION UNCER

TAINTY.

[ocr errors]

A complaint for damages for breach of contract to convey land alleged a contract by which plaintiff offered to exchange his stock of groceries, etc., to be invoiced at cost price for land owned by defendant, but the contract concluded, "I am to pay for said farm $50 per acre in merchandise and fixtures. When merchandise has been invoiced at cost, I am to deduct therefrom the sum of $246, and the remainder is the amount that I am to receive for said stock." Held, that it appeared from the contract that the parties expected that the value of the merchandise as fixed by invoice less $246 would equal or exceed the sum at which the land was to be taken by plaintiff, and that he was to pay in cash any excess in value of the land over the merchandise, and, therefore, the contract was not indefinite and uncertain within the meaning of the statute of frauds.

6. DAMAGES-LIQUIDATED DAMAGES-PENAL

TY.

Where a contract providing for the exchange of a stock of merchandise for 120 acres of land valued at $50 per acre stipulated that either party agreed to forfeit to the other $500 as liquidated damages if he failed to carry out the agreement, such provision was not to be construed as a penalty.

7. SAME-PLEADING-LIQUIDATED DAMAGES. Where liquidated damages are provided for it is not necessary to allege actual damages.

Appeal from Circuit Court, Montgomery County; Jere West, Judge.

Action by Daniel V. Howard against Guy Adkins. From a judgment for defendant, plaintiff appeals. Reversed.

Chase Harding, for appellant. Thomas & Foley, for appellee.

MONKS, J. This action was brought by appellant to recover liquidated damages for the breach of a contract. A demurrer for want of facts was sustained to each paragraph of the complaint, and a judgment followed that appellant take nothing by his suit, and pay the cost. The assignment of errors calls in question the action of the court in sustaining said demurrer. It is objected by counsel for appellee that appellant has not complied with rule 22 of this court (68 N. E. viii) in the preparation of his brief in this: "That it is confused and indefinite with its several parts so intermingled with irrelevant matters and statements" as not to be understood. While it may be true that appellant

has not prepared his brief in all respects as required by the rule mentioned, yet the brief contains enough to advise each of the judges of the questions which are presented for determination. It is manifest that appellant has made a good faith effort to comply with, and has substantially complied with, our rules in the preparation of his brief. This is sufficient. Stamets v. Mitchenor, 165 Ind. 672, 675, 75 N. E. 579; Swing v. Hill, 165 Ind. 411, 414, 75 N. E. 658; Low v. Dallas, 165 Ind. 392, 394, 75 N. E. 822.

The following is a copy of the writing sued upon:

"New Ross, Ind., Oct. 15, 1904. I hereby submit the following proposition: I will exchange my stock of dry goods, groceries, boots, and shoes, fixtures, etc., owned by me and with which I am doing business in the Odd Fellows Building at New Ross, Indiana, said stock to be free from liens of every kind and character, and to be invoiced at first cost price said price to be obtained from bills for said goods from wholesale houses from which they were bought-for one hundred twenty (120) acres of land, more or less, owned by Daniel V. Howard of Dana, Indiana, and located about three (3) miles west of Winamac, Pulaski Co., Indiana, in sections seventeen (17) and eighteen (18) township thirty (30) north of range two (2) west; said land to be free from liens and incumbrances of every kind and character except a mortgage of two thousand ($2,000.00) dollars, and interest thereon from this date and possession to be given on or before March 1st, 1905, nothing reserved. I am to have all loose timber, tiling, posts, etc., now on said farm, but am not to have any interest in any of the crops or rent of said farm for the year 1904. I am to pay for said farm fifty dollars ($50.00) per acre in merchandise and fixtures. When above mentioned stock of merchandise and fixtures has been invoiced at cost, I am to deduct therefrom the sum of Two Hundred Forty-Six dollars ($246.00) and the remainder is the amount that I am to receive for said stock. I am to give possession as soon as stock of merchandise and fixtures has been invoiced and trade closed, which is to be as near October 20th as possible. Either party to this agreement hereby agrees to forfeit to the other five hundred dollars ($500.00) as liquidated damages if he fails to carry out his part of said agreement. Guy Adkins & Co. "I hereby accept the foregoing proposition. Daniel V. Howard."

Appellee first insists that, as the contract is within the statute of frauds, no damages can be recovered for the breach of the same because this 120 acres of land cannot be located from the description given. The rule recognized in this state is that "when the description given is consistent but incomplete and its completion does not require the contradiction nor alteration of that given, nor that a new description should be intro

duced, parol evidence may be received to complete this description and identify the property." Tewksbury v. Howard, 138 Ind. 103, 105, 106, 37 N. E. 355, and cases cited; Colerick v. Hooper, 3 Ind. 316, 56 Am. Dec. 505; Torr v. Torr, 20 Ind. 118, 122, 124, and authorities cited; Guy v. Barnes, 29 Ind. 103; Wood on the Statute of Frauds, § 353; and 20 Cyc. pp. 270, 271. It is a well settled rule that parol evidence is admissible to apply a contract to its subject-matter. Wills v. Ross, 71 Ind. 13, 40 Am. Rep. 279, and cases cited. Contracts governed by the statute of frauds like other contracts are to be read "by the light of surrounding circumstances." It follows therefore that parol evidence may be given of the situation and relation of the parties and the surrounding circumstances. Wills v. Ross, 77 Ind. 1, 12, 13, 40 Am. Rep. 279, and cases cited; Ransdel v. Moore, 153 Ind. 393, 400, 401, 53 N. E. 767, and authorities cited; Mace v. Jackson, 38 Ind. 162, 166, 167; Colerick v. Hooper, 3 Ind. 316, 56 Am. Dec. 505; Torr v. Torr, 20 Ind. 118, 122, 124; Guy v. Barnes, 29 Ind. 103; Tewksbury v. Howard, 138 Ind. 103, 105, 106, 37 N. E. 355; Johnson v. Buck, 35 N. J. Law, 344, 10 Am. Rep. 243; Bacon v. Leslie, 50 Kan. 494, 31 Pac. 1066, 34 Am. St. Rep. 134, 136, 137, and note page 141; Mead v. Parker, 115 Mass. 413, 15 Am. Rep. 110; Hurley v. Brown, 98 Mass. 545, 96 Am. Dec. 671, and note page 675; Preble v. Abrahams, 88 Cal. 245, 26 Pac. 99, 22 Am. St. Rep. 301, and note page 306; Lente v. Clark, 22 Fla. 515, 1 South. 149; Williams v. Morris, 95 U. S. 444, 456, 24 L. Ed. 360, and cases cited; Hodges v. Kowing, 58 Conn. 12, 18 Atl. 979, 7 L. R. A. 87; Moayon v. Moayon (Ky.) 72 S. W. 33, 60 L. R. A. 415, 423, 424, 102 Am. St. Rep. 303; Pomeroy on Cont. (2d Ed.) §§ 90, 152, 161, and notes; 1 Beach on Cont. § 581; Clark on Cont. p. 120; Wood on Stat. of Frauds, §§ 395, 396, 449, and notes; Browne on Stat. of Frands (5th Ed.) § 385; 1 Reed on Stat. of Frauds, § 416; Tiffany on Sales, pp. 70, 71, and notes 173, 174, 673, 674; 17 Cyc. pp. 317, 318. In Warvelle on Vendors (2d Ed.) § 135, it is said that a description as "my house and lot" imports a particular house and lot, rendered certain by the description that it is the one that belongs to "me." The following descriptions have been held sufficient: "My lot on the plat in the town of South Bend, on the plat of said town, on the river bank" (Colerick v. Hooper, 3 Ind. 316, 56 Am. Dec. 505); the "Snow farm" (Hollis v. Burgess, 37 Kan. 487, 15 Pac. 536); "H.'s place at S." (Hodges v. Kowing, 58 Conn. 12, 18 Atl. 979, 7 L. R. A. 87); the "Knapp home property" (Goodenow v. Curtis, 18 Mich. 298); an agreement to convey land described as "occupied" by the vendor or a third person (Angel v. Simpson, 85 Ala. 53, 3 South. 758; Towle v. Carmelo Land, etc., Co. 99 Cal. 397, 33 Pac. 1126; Docter v. Hellburg, 65 Wis. 415, 27 N. W. 176). In all

such cases, parol evidence of the situation of the parties and the surrounding circumstances when the contract was made, was admitted so that the court might be placed in the position of the parties, and thus see with their eyes, and understand the force and application of the language used by them. It must be assumed looking at the terms of the writing that the parties had in view and understood that they were dealing as to a particular tract of "120 acres of land more or less" owned by appellee and located in the section, township, and range mentioned in said writing. Under this view it is evident that the description of the real estate set out in writing sued upon was, prima facie, sufficient. In a suit on such writing, it was not necessary to the sufficiency of the complaint to allege that appellee had only one tract answering such description. 20 Encyc. Pleading & Practice, 450. If appellee had more than one tract of "120 acres of land more or less" in said sections answering said description, whereby the sufficiency of the contract as identifying a particular tract of land would be destroyed, that is a matter of defense to be set up in an answer. Lente v.

Clark, 22 Fla. 515, 1 South. 149.

It is urged by appellee that the writing sued upon is indefinite and uncertain, and therefore insufficient under the statute of frauds, because there is no provision for the payment of any possible difference between the value of the farm at the agreed price, and the stock of goods to be ascertained by the invoice. In this state it is not necessary that the consideration be stated in writing, but it may be proved by parol. See section 6630, Burn's Ann. St. 1901; Hiatt v. Hiatt, 28 Ind. 53. If the writing undertakes to state the consideration but states it indefinitely, such ambiguity may be relieved to the same extent that it is competent to explain other ambiguous writings not within the statute of frauds. Burke v. Mead, 159 Ind. 252, 258, 259, 64 N. E. 880, and authorities cited; Martendale v. Parsons, 98 Ind. 174, 178, 181. With reference to the elements of certainty generally, it is well settled that what the law implies in a contract is as much a part of it as what is expressed, and such contract must be read and construed as if the same were written therein. 1 Beach on Contracts, § 710; Burke v. Mead, 159 Ind. 252, 258, 64 N. E. 880, and cases cited; 1 Reed on Statute of Frauds, § 400; Barry v. Combe, 1 Pet. (U. S.) 640, 651, 652, 7 L. Ed. 295; Ryan v. Hall, 13 Metc. (Mass.) 520, 523; Lawler v. Murphy, 58 Conn. 299, 304-311, 20 Atl. 457, 8 L. R. A. 113. It is apparent from the writing that the parties thereto understood that the value of the merchandise and fixtures, as fixed by the invoice, less $246, would equal, if not exceed, the sum at which the land was to be taken by the appellee; for it is expressly provided therein that he was to pay for the land in "merchandise and fixtures." It is evident under

the authorities cited that the appellant was to pay in cash whatever amount, if any, the cost price of the merchandise and fixtures, less $246, exceeded the amount which the land was to be taken at. So construed, the writing is not indefinite or uncertain in the respect urged by appellee. The fact that the land is mentioned in the writing as "120 acres, more or less," and the amount to be paid therefor is "$50 per acre," does not render the price of the land uncertain as the number of acres could be ascertained and the price determined.

It is next claimed by appellee that the amount named in the writing as liquidated damages is a mere penalty, and, as the complaint does not allege facts showing actual damages, the same is insufficient. Under the rule declared in Bird v. St. Johns, etc., Church, 154 Ind. 138, 147, 148, 56 N. E. 129, and cases cited, the amount named as liquidated damages must be so treated. Where liquidated damages are provided for, it is not necessary to allege actual damages. It follows that the objections urged to the complaint are not tenable.

Judgment reversed, with instructions to overrule the demurrer to the complaint.

(167 Ind. 191)

WURFEL v. STATE. (No. 20,794.) (Supreme Court of Indiana. Oct. 11, 1906.) CRIMINAL LAW-REVIEW-MOTION FOR NEW

TRIAL-RECORD.

A motion for a new trial in a criminal case which is not inserted in the transcript as a part of the statutory record, but is merely set out in the bill of exceptions, is not in the record, and the errors assigned will not be reviewed.

Appeal from Circuit Court, Clark County; C. M. Cook, Special Judge.

Edward Wurfel was convicted of an assault and battery with intent to commit rape, and he appeals. Affirmed.

Jas. W. Fortune, for appellant. C. W. Miller, W. C. Geake, C. C. Hadley, and H. M. Dowling, for the State.

JORDAN, C. J. Appellant was charged and convicted by a jury in the lower court with having committed an assault and battery upon Anna Weidner with the felonious intent to commit rape. Over his motion for a new trial he was sentenced, upon the verdict of the jury, to be imprisoned in the Indiana Reformatory for an indefinite period of from 2 to 14 years, and was fined in the sum of $1. From this judgment he appeals to this court and assigns various errors to the effect that the trial court erred in giving certain instructions and also in overruling his motion for a new trial. The several independent assignments of error based upon the action of the court in giving the instructions in question are not legitimate and are of no avail. Hence the only proper assign

« ΠροηγούμενηΣυνέχεια »