Meno v. State

Spencer, J. Appellants have been tried and found guilty of keeping a place where intoxicating liquors were sold in violation of §8351 Burns 1914, Acts 1907 p. 689, and have appealed from the judgment of conviction. 1. The first assignment of error questions the action of the trial court in overruling appellants’ motion to quash the indictment; but as this assignment is unsupported in appellants’ brief by either authorities or argument, its consideration is waived. Campbell v. State (1912), 179 Ind. 240, 100 N. E. 755. 2. 3. 4. The remaining assignments seek to present alleged error of the circuit court in overruling' appellants’ separate and several motion for a new trial. Contention is first .made that certain of the instructions given contain incorrect statements of law and that others, tendered by appellants, were improperly refused. Although the evidence has been brought into the record, no attempt to state the same in appellants’ brief has been made, and, as this court will not look to the record to reverse a judgment, we must consider the instructions in the light of any evidence which was admissible under the issues. Since the objections urged against instructions Nos. 10 and 18, given at the request of the State, and to the refusal of instructions Nos. 26 and 28, tendered by appellants, are based wholly on their relation to the evidence given at the trial, their sufficiency may.not be determined in the absence of a proper statement of that evidence in appellants’ brief. For the. same reason, all' questions as to the admissibility of evidence and as to the sufficiency of the evidence to sustain the verdict are waived. [6] . The objection urged against instruction No. la, given at the request of the State, and instruction No. 34, given [7] by the court on its own motion, is that they are inconsistent and contradictory. Instruction la sets out that part of section 8351 Burns 1914, supra, on which the prosecution is.based, and in which it is provided that, on conviction, the defendant “shall be fined in any sum not less than fifty ($50.00) dollars and not more than five hundred ($500.00) dollars, to which the court or jury trying the case shall add .imprisonment in the county jail of not less than thirty days nor more than six months.” Instruction No. 34 relates to the form of the verdict and authorized the jury, in case they should find the defendants guilty and should deem a fine and imprisonment in the Indiana State Farm to be the proper penalty, to fix in their verdict the amount of such fine and the length of such imprisonment. Instruction No. 34, however, is singled out from several instructions which relate to the form of verdict and when the'charge is considered as a whole the objection urged must be recognized as trivial. Instruction No. 32 sets out in substance the provisions of §9926h Burns 1914, Acts 1913 p. 660 et seq., which authorizes the commitment to the Indiana State Farm of persons convicted of the violation of criminal laws, for which the punishment should include imprisonment in the county jail for more than sixty days, and instruction No. 34 does no more than to indicate a form of verdict which should include that penalty. Instruction No. 33 provided a similar form for use in case imprisonment in the county jail for sixty days or less was determined to be the proper punishment, and other instructions provided for verdicts of acquittal and for varying degrees of guilt. There was no error in any of these instructions. [8] 6. [7] Nor is there any merit in appellants’ contention that the verdict is “contrary to law because it fixes a fine of [8] $1,600 and imprisonment for six hundred days” as punishment for the violation of a statute which provides a lesser punishment as the maximum penalty. The verdict was, “We the jury find the defendants each guilty as charged in the indictment, and fix the punishment of each at a fine of $400.00 and imprisonment in the Indiana State Farm for 150 days.” Each of the four defendants was found guilty and sentenced to pay a fine of $400 and to serve 150 days at the penal farm. The number of defendants is of no importance, however, for every person convicted of a violation of law may receive the maximum penalty if his triers so decree-. 7. As against other instructions given by the court the bare assertion is made that they contain error, but no question is thus presented for review. Bonnel v. Shirley (1892), 131 Ind. 362, 31 N. E. 64. 8. 9. Finally, it is claimed that a new trial should have been granted on account of alleged misconduct on the part of counsel for the State and on the part of one of the jurors who tried the case, but appellants’ statement of the record contains no reference to either of these matters except as they are mentioned in the motion for a new trial. Furthermore, it appears from the record itself that the charge made against the juror in question was met by a counter affidavit which raised an issue of fact on which the decision of the trial court is final (Thain v. State [1914], 182 Ind. 345, 349, 106 N. E. 690), and that the statement of counsel to which objection is urged may be found oniy in the general,bill of exceptions containing the evidence. McPherson v. State (1912), 178 Ind. 583, 586, 99 N. E. 984; Heath v. State (1909), 173 Ind. 296, 300, 90 N. E. 310, 21 Ann. Cas. 1056. [9] No error appearing, the judgment of the trial court is affirmed. Note. — Reported in 114 N. E. 689. Criminal law: reversal of conviction because of unfair or irrelevant argument or statements of fact by prosecuting attorney, 46 L. R. A. 641, 34 L. R. A. (N. S.) 811; validity of sentences in apparent excess of the maximum, 55 Am. St. 267. See under (6) 12 Cyc 689; (7) 12 Cyc 875; (8) 12 Cyc 908; (9) 12 Cyc 844.