Appeal from Lawrence Circuit Court; 1. Disorderly house 12-Indictment for James A. Cox, Judge. Stanley Torphy was convicted for unlawfully purchasing, receiving, transporting, possessing, selling, bartering, exchanging, giving away, furnishing, and disposing of intoxicating liquor, and he appeals. Affirmed. Robert L. Mellen, of Bedford, for appellant. Arthur L. Gilliom, Atty. Gen., and Harry L. Gause, Deputy Atty. Gen., for the State. GEMMILL, J. In the Lawrence circuit court, the appellant was prosecuted on the first count of an amended affidavit, in which it was charged that, on or about the 14th day of February, 1926, at Lawrence county, he did then and there unlawfully purchase, receive, transport, possess, sell, barter, exchange, give away, furnish, and dispose of intoxicating liquor. Said offense is defined in section 4, c. 48, Acts 1925, section 2717, Burns' 1926. He was found guilty by the court. His motion for a new trial was overruled. He has appealed from the judgment of fine and imprisonment. It is contended that the court erred in overruling appellant's motion to quash the first count of the amended affidavit. The record filed by appellant did not contain a complete and correct copy of the first count. After appellant's brief was filed, the bill of exceptions was corrected by a certiorari, and the first count of the amended affidavit as it existed in the lower court is now before this court. His contention that this count should be quashed is not based on same as corrected in the record. The allegations of said first count of the amended affidavit follow the language of the statute, and the motion to quash was properly overruled. : The motion for a new trial questions the sufficiency of the evidence. In his brief, appellant says: "The evidence, giving appellee benefit of all questions of weight of evidence, shows posses keeping house of ill fame held sufficient against objection it failed to locate place or name persons resorting thereto (Burns' Ann. St. 1926, § 2562). Indictment under Burns' Ann. St. 1926, § 2562, for keeping house of ill fame, stating that defendant, at and in certain county in state of Indiana, did unlawfully keep house of ill fame, resorted to for purpose of prostitution and lewdness by persons of bad reputation for chastity and virtue, held sufficient as against motions to quash and arrest of judgment on ground that it failed to state that defendant kept house in certain city or to sufficiently locate place where house was kept, and failed to name persons who resorted to house or to state that names of such persons were unknown to grand jury. 2. Disorderly house 17-Legal evidence tending to support fact that defendant kept house is essential to conviction of keeping house of ill fame (Burns' Ann. St. 1926, § 2562). To sustain a conviction of keeping house of ill fame in violation of Burns' Ann. St. 1926, § 2562, there must be legal evidence tending to support the ultimate essential fact that defendant kept the house. 3. Criminal law 1163(3)-Improper admis sion of testimony will be presumed prejudicial. Improper admission of testimony which was influential on issue to be determined by the jury will be presumed to have been prejudicial. 4. Witnesses 236(1), 237(1)-Permitting affirmative answers to questions which were in form double and improperly assumed fact in issue held error (Burns' Ann. St. 1926, § 2562). In prosecution for keeping house of ill fame in violation of Burns' Ann. St. 1926, § 2562, permitting state's witness to answer in affirmative, over objection, if she knew where house was located, that was kept by defendant, and if she was acquainted with general reputation of house at certain address kept by defendant, as to being or not being house of prostitution, held error, since questions in form were double and improperly assumed a fact in issue which was for the jury alone. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 5. Criminal law 698(1)-Objectionable question and answer, not objected to nor moved to be stricken out, will be considered. Where objectionable question and answer of witness were admitted without objection or motion to strike out answer, Supreme Court must regard such question and answer as properly before jury and consider it with all other testimony given by witness.. 6. Criminal law 560, 1159(2)-Scintilla rule of evidence does not obtain in Indiana, and whether material facts are supported by some Appellant insists that he was not charged with a public offense, in that the indictment fails to state that he kept a house of ill fame in the city of Muncie, Delaware county, Ind., or to sufficiently locate the place where the house was kept; that it fails to name the persons who resorted to the house for lewd purposes or to state that the names of such persons were unknown to the grand jury. The allegations of the indictment at bar are substantially the same as those used in the evidence is question of law reviewable on ap- affidavit in the case of Eley v. State, 183 Ind. peal. 161, 108 Ν. E. 516, and upon the authority of that case the rulings of the trial court on the motions to quash and in arrest of judgment were correct. See, also, Winegardner v. State, 181 Ind. 525, 104 N. E. 969; State v. Bridgewater, 171 Ind. 1, 5, 85 N. Ε. 715; Donovan v. State, 170 Ind. 123, 83 N. Ε. 744. The admission of certain evidence, over objection, verdict contrary to law and not sustained by sufficient evidence are causes relied upon by appellant in his motion for a new trial. Without objection or motion to strike out the answer, an inmate of the Indiana Girls' School and the first witness for the state, without any foundation therefor, was asked if she knew the location of the house "kept by John Sullivan during the latter part of the Appeal from Delaware Circuit Court; C. year 1922." Answer, "Yes, sir"; and, in W. Dearth, Judge. John Sullivan was convicted of keeping a house of ill fame, and he appeals. Reversed, with instructions. pellant. Leffler, Ball & Leffler, of Muncie, for apU. S. Lesh, Atty. Gen., and O. S. Boling, of Indianapolis, for the State. PER CURIAM. Appellant, in the court below, was indicted, tried by a jury, and convicted of keeping a house of ill fame. Judgment on the verdict. He has appealed and assigned as errors the overruling of his motion to quash the indictment, the overruling of his motion for a new trial, and the overruling of his motion in arrest of judgment. [1] The statute defining the offense with which appellant was charged provides that: "Whoever keeps a house of ill fame, resorted to for the purpose of prostitution or lewdness, shall be fined," etc. Section 2562, Burns' 1926. * * That part of the indictment material to the questions raised by the motions to quash and in arrest of judgment states that: Appellant "at and in the county of Delaware, state of Indiana, did then and there unlawfully keep a house of ill fame, which was then and there, and during all of said time, resorted to for the purpose of prostitution and lewdness by persons, male and female, who were then and there of bad reputation for chastity and virtue." answer to further questions, identified the house by a sign on it and gave its location by street number and name of street; passed it many times, but was never in it but the one time. The second witness for the state, said to be the probation officer for the circuit and juvenile courts of Delaware county, on her original examination, without any preliminary showing, was permitted to answer in the affirmative, over objection, the question if she knew "where the house was located during the time from the 1st day of October, 1922, until the 1st day of January, 1923, that was kept by John Sullivan," and to answer in the affirmative the further question, over objection, if she was "acquainted with the general reputation of the house at 401 East Willard street, kept by John Sullivan from the 1st of October. 1922, until the 1st day of January, 1923, as to being or not being a house of prostitution." Both of these witnesses testified that they did not know appellant, nor had either ever seen him in, around, or about the house in question, unless he was the man seen by the first witness under the circumstances when she, with three others, a girl and two men, at about 8 o'clock in the eve ning of December 24, 1922, went to the house and was met at the door by a lady with a baby in her arms, from whom one of the men rented a room, for what length of time she did not know, but from other uncontradicted evidence it appears that the rental was for one-half week, for which $2.50 was paid. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (161 Ν.Ε.) This witness also stated that at about 9 o'clock in the evening, and while she was in bed, a man she supposed was Sullivan came to the door of the room, and on being admitted asked that they register. The room "was rather dark"; no light other than "reflection from the stove," which was away from the man. Never saw him before or afterwards, and "I am not sure" who he was, although he looked like the defendant, but did not know whether it was Mr. Sullivan or not. From other uncontradicted testimony it appears that the house in question had twelve rooms and bath; that it was owned by appellant, and for a rental of $60 a month was leased to a man whose wife was the lady with the baby in her arms. On the porch was a sign "Light housekeeping rooms." The house had two two-room apartments and a single up stairs, and down stairs three tworoom apartments and a single. The lessee, with his wife and three children, occupied one apartment and the single down stairs and sublet the other apartments for $5 a week. There is also testimony that the lessee was not at the house when the Christmas Eve party obtained the room, but was the man whom the state's witness later saw there. [2] Appellant was charged with keeping a house of ill fame. He was not charged with knowingly letting or knowingly permitting a house, by him let, to be so kept. In order to sustain a conviction in this case, there must be legal evidence tending to support the ultimate essential fact that appellant kept the house. [3-5] Directing our attention to the questions put by the state and the answers thereto of the second witness to which we have referred, we are well convinced that they were influential on an issue to be determined by the jury, and, being improper, they will be presumed to have been prejudicial. Davis v. Cox, 178 Ind. 486, 99 N. E. 803. It is often shown by the record that this presumption is overcome and rendered ineffectual (Ohio Valley Trust Co. v. Wernke, 179 Ind. 49, 55, 99 N. E. 734), but it does not so appear in the instant case. Hence it was error to overrule the objections for several reasons, among which are (1) the questions in form were double; (2) it improperly assumed a fact in issue which was for the jury alone, and for the same reason, the question and the answer of the first witness relative to who kept the house was objectionable. But, in view of the record at bar, we must regard that question and answer as properly before the jury (Lucas v. State, 173 Ind. 302, 90 N. E. 305) and consider it with all the other testimony given by this witness, and this done, it unquestionably appears that the witness was deceived into an affirmative answer to a question which included a statement she knew nothing about. [6,7] We have mentioned all of the evidence directed to the issue of who kept the house. We have endeavored to analyze it favorably to the state, but when the improper evidence of the second witness is excluded, that which remained tending to show that appellant kept the house amounted to no more than a mere scintilla of proof. The scintilla of evidence rule does not obtain in this jurisdiction. The settled rule in this state requires that the material facts in issue be supported by some evidence, and this question is one of law reviewable on appeal. Nordyke & Marmon Co. v. Whitehead, 183 Ind. 7, 106 N. E. 867. This court will not weigh evidence, nor will it say that a mere spark or trifle is sufficient to sustain an issuable fact. Wright v. Bertiaux, 161 Ind. 124, 129, 66 Ν. E. 900. [8] There was evidence by two police officers tending to show that during the time covered by the indictment the house in question was reputed to be a house of ill fame, but this evidence, together with evidence showing that appellant was the owner thereof, under all the circumstances of this case, will not alone warrant a finding that appellant kept the house. The other questions presented may not arise upon a retrial, but for the reasons suggested the judgment must be reversed. Judgment reversed, with instructions to the trial court to sustain appellant's motion for a new trial, and for further proceedings. ONSTOTT v. STATE. (No. 24332.) Supreme Court of Indiana. May 9, 1928. 1. Criminal law 1178-Admitting evidence claimed procured by illegal search warrant held not shown to be error, where briefs failed to allege facts wherein illegality lay. In liquor prosecution under Acts 1921, с. 250, where defendant objected to evidence on ground it was procured by virtue of illegal search warrant, but did not show in brief facts showing wherein illegality lay, held that record failed to show error was committed, and appellate court must presume that rulings of trial court were correct. 2. Criminal law 1141(2)-Appellant must present record which affirmatively shows harmful error in trial court to secure reversal. One who appeals from judgment of trial court must present record which affirmatively shows error in such trial by which appellant William J. Reed, of Knox, and C. C. Campbell, of Rochester, for appellant. was harmed. Appeal from Starke Circuit Court; W. C. Pentecost, Judge. Guy Onstott was convicted of having intoxicating liquor in his possession for the purpose of unlawfully disposing of it, and he appeals. Affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes U. S. Lesh, Atty. Gen., Mrs. Edw. F. White, Deputy Atty. Gen., and Dale F. Stansbury, of Williamsport, for the State. WILLOUGHBY, C. J. The appellant was tried for having intoxicating liquor in his possession for the purpose of unlawfully disposing of it in violation of chapter 250, Acts 1921, p. 736. He was tried by jury and convicted and sentenced to serve 90 days on the penal farm and fined $275. A motion for a new trial was overruled and judgment rendered on the verdict. The errors relied on for reversal as stated in appellant's brief are: (1) The Starke circuit court erred in assuming jurisdiction to try this cause. (2) The Starke circuit court erred in overruling appellant's motion to dismiss this cause for want of jurisdiction to try it. (3) The Starke circuit court erred in overruling defendant's motion to suppress the evidence. (4) The Starke circuit court erred in overruling appellant's motion for a new trial. The first and second errors relied on arise out of the claim of appellant that the Starke drcuit court did not have jurisdiction to try the cause, because the proceeding was commenced by the filing of an affidavit in the city court of Rochester, Ind., and that the defendant was tried, convicted, and sentenced in said city court and appealed to the Fulton circuit court; that he then took a change of venue from the Fulton circuit court to the Starke circuit court, and the objection raised against the jurisdiction of the Starke circuit court is that the record does not show that an affidavit charging the appellant with the offense was filed in the Fulton circuit court and transmitted to the Starke circuit court with the transcript on change of venue, with the other papers in the cause. The appellant in his brief under "Points and Authorities" says that the Starke circuit court had no jurisdiction to try the cause for the reasons above stated, and refers to section 2239, Burns' 1926, and section 2240, Burns' 1926, and claims that the court to which the venue was changed has no jurisdiction of the cause until the transcript and original papers are duly filed in the clerk's office of the court to which the change is granted, and he further states that the transcript must show that an affidavit or indictment had been filed in the Fulton circuit court and that when a change of venue was taken from the Fulton circuit court to the Starke circuit court the Starke circuit court did not have jurisdiction to try the cause unless the transcript showed that the affidavit in question had been filed in the Fulton circuit court, But it appears by the return to a writ of certiorari that before the trial the record had been corrected by nunc pro tunc entries so that at the time of such trial it shows that the appellant was tried and convicted in the city court of Rochester, then appealed to the Fulton circuit court, and from there took a change of venue to the Starke circuit court, and that the affidavit on which he was tried and convicted in the city court of Rochester was duly certified and delivered to the Fulton circuit court on appeal and from there to the Starke circuit court on change of venue and was duly and regularly on file in the Starke circuit court when appellant was tried. This return to the writ of certiorari shows that the Starke circuit court had jurisdiction to try the offense charged. In proposition 3 appellant contends that the evidence upon which the appellant was convicted was procured under an unlawful search warrant and introduced over the objection of appellant. If this contention is true the verdict is not sustained by sufficient evidence. See Callender v. State, 193 Ind. 91, 138 N. Е. 817. In Tow v. State, 198 Ind. 253, 151 N. Ε. 697, it is said that errors assigned on appeal are waived when not stated in the "Points and Authorities" part of appellant's brief and supported by argument. [1, 2] The appellant's motion to suppress evidence is in substance as follows: That on the 14th day of March, 1922, the defendant was living at his home near Rochester and that the marshal of the city of Rochester and others, with a pretended search warrant, searched the premises occupied by appellant. That the search warrant was issued without authority of law and that they obtained liquor, some containers, and information by use of the search warrant which they would not otherwise have obtained, and that the defendant asked to have the liquor and containers returned to him, and the same as evidence and any information obtained by the use of the search warrant be suppressed. It will be observed that the appellant says that the search warrant was issued without any authority of law, but he does not point out why it was without any authority of law. In fact, he does not discuss the alleged illegality of said search warrant in "Points and Authorities" in discussing the sufficiency of the evidence. The only objection pointed out to the evidence is, as appellant says, that it was procured by virtue of an illegal search warrant. We cannot ascertain from any facts set forth in appellant's brief that the issue of said search warrant and the sufficiency of it violated any of the constitutional rights of the appellant. The appellant argues that the verdict is not sustained by sufficient evidence and is contrary to law because the evidence upon which the verdict was based was procured under said illegal search warrant, and it is not contended that the evidence is insufficient if it had been lawfully procured. One who appeals from the judgment of a trial court must present a record which affirmatively shows error in such trial by which (161 Ν.Ε.) the appellant was harmed. Kirschbaum v. State, 196 Ind. 512, 149 Ν. Ε. 77. In Briles v. State, 198 Ind. 689, 154 N. E. 659, it is held that no question as to the overruling of a motion for a new trial is pre sented on appeal where the propositions of law stated in appellant's brief are not addressed to any of the specifications for new trial. In Land v. State, 198 Ind. 342, 151 Ν. Ε. 823, it is held that in order to present for review the exclusion of evidence, appellant's brief must point out the place in the record where the questions and ruling of the court may be found. The errors assigned on appeal will not be considered when appellant has not accompanied points to be considered by appropriate points and authorities. In Woodward v. State, 198 Ind. 70, 152 N. E. 277, it is held that rulings of the court which are assigned as causes for a new trial are waived if not properly presented in appellant's brief on appeal. In Denny v. City of Muncie, 197 Ind. 28, 149 N. E. 639, it is held that assignments of error which are not supported by argument or citation of authorities will be considered as waived. In Henry v. State, 196 Ind. 14, 146 N. E. 822, it is held that a cause for new trial not presented as alleged error has been waived or abandoned. In Kirschbaum v. State, supra, it is held that the presumption being in favor of the regularity and correctness of the rulings of the trial court it is incumbent on appellant to present a transcript that affirmatively shows the commission of the error complained of. In Volderauer v. State, 195 Ind. 415, 143 Ν. E. 674, it is held that a ruling on a motion to return confiscated liquor to the defendant made before the trial could not be made separate assignment of error but should be presented to the trial court as ground for a new trial under the first clause of section 2158, Burns' 1914, being section 2325, Burns' 1926; and that the officers who arrested the defendant, charged with transporting liquor in an automobile, searched his automobile without a warrant cannot be urged for the first time on appeal under the specifications of a motion for new trial. signed as error under the first clause of section 2325, Burns' 1926, which provides that: 'The court shall grant a new trial to the defendant for the following causes, or any of them: First. Irregularities in the proceed ings of the court or jury, or (for) any order of the court, or abuse of discretion, by which the defendant was prevented from having a fair trial." See, also, Chappelle v. State, 196 Ind. 640, 149 Ν. Ε. 163. Except so far as the record is made affirmatively to show that error was committed, we must presume that all rulings of the trial court were correct. Jackson v. State ex rel., 194 Ind. 130, 142 N. E. 1; Coleman v. State, 196 Ind. 649, 149 N. E. 162. No reversible error being shown in the record, the judgment is affirmed. ORR v. STATE. (No. 25419.) Supreme Court of Indiana. April 24, 1928. 1. Criminal law905-Where judgment is supported by plea of guilty, there is nothing on which to base motion for new trial. Where judgment is supported by plea of guilty, there is nothing on which to base motion for new trial. 2. Criminal law998 1147-Setting aside judgment on plea of guilty is in court's discretion interfered with only for abuse. Where defendant pleaded guilty to auto banditry under Burns' Ann. St. 1926, § 2548, application to court to set aside judgment entered on plea of guilty and to permit withdrawal of that plea and entry of plea of not guilty required trial court to exercise judicial discretion, and only for abuse of it would Appellate Court interfere. 3. Criminal law998-Evidence held not to show abuse of discretion in denying application to set aside judgment on plea of guilty to auto banditry (Burns' Ann. St. 1926, § 2548). On appeal from adverse ruling on application to set aside judgment entered on plea of guilty to auto banditry, under Burns' Ann. St. 1926, § 2548, and permit withdrawal of that In discussing this question in Biddle v. plea and entry of plea of not guilty, evidence State, 157 N. E. 280, this court said: "It appears from the record that this motion was filed and ruled on before the beginning of the trial. Action of the court on motions made before the beginning of the trial cannot be assigned in said motion for a new trial as error of law occurring at the trial. Bush v. State, 189 Ind. 467, 128 N. E. 443. The overruling of this motion is stated in the motion for a new trial as error of law occurring at the trial and excepted to by the party making the application, while the record shows that the motion was filed and disposed of before the trial began. To present any question on the ruling on this motion it should have been as held not to show abuse of discretion by trial court in denying application, in view of presumption of correct action on part of trial court Appeal from Bartholomew Circuit Court; Julian Sharpnack, Judge. Harold Orr was convicted of auto banditry, and he appeals. Affirmed. T. Ernest Maholm and John Edwards, both of Indianapolis, and Frank Jones, of Columbus, for appellant. Arthur L. Gilliom, Atty. Gen., and Harry L. Gause, Deputy Atty. Gen., for the State. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |