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THE

NORTH EASTERN REPORTER

VOLUME 161

DUDLEY v. STATE. (No. 25503.) Supreme Court of Indiana. April 24, 1928. 1. Criminal law 1106 (3)-Appeal held dismissible where more than time prescribed elapsed between service of notice of appeal on prosecuting attorney and filing of transcript (Burns' Ann. St. 1926, § 2382, as amended by Acts 1927, c. 132, § 16).

Under Burns' Ann. St. 1926, § 2382, as amended by Acts 1927, c. 132, § 16, providing that transcript of record must be filed within 60 days after appeal was taken, filing of transcript in Supreme Court on October 11, 1927, after serving notice of appeal on prosecuting attorney on July 14, 1927, held not within time fixed by law, necessitating dismissal on motion of Attorney General, since appeal is deemed to have been taken as of date of service of notice on prosecuting attorney.

2. Criminal law 1106(3)—As to transcript, appeal is deemed taken by service of notice on prosecuting attorney as of date of service (Burns' Ann. St. 1926, § 2382, as amended by Acts 1927, c. 132, § 16).

Under Burns' Ann. St. 1926, § 2382, as amended by Acts 1927, c. 132, § 16, providing that transcript must be filed within 60 days after appeal is taken, the appeal is deemed to have been taken by virtue of service of notice of appeal on prosecuting attorney as of

date of such notice.

Appeal from Sullivan Circuit Court; A. E. Debaum, Judge.

Donald Dudley was convicted of possessing intoxicating liquor, and he appeals. The Attorney General moved to dismiss the appeal. Appeal dismissed.

the time of the overruling of the motion for a new trial. Exceptions were taken to such ruling and time given to file bills of exception. Appellant filed an appeal bond April 13, 1927. Notice of appeal was served July 14, 1927. The transcript of the record was filed in this court on October 11, 1927. On the subject of appeals in criminal cases, section 2382, Burns' 1926, provides that all appeals must be taken within one year after the judgment is rendered, or, in case a motion for a new trial is filed, within one year after the ruling on such motion. The transcript must be filed within ninety days after the appeal is taken. This section has been amended by section 16, c. 132, p. 421, of the Acts of 1927, and the section now reads:

dred and eighty days after the judgment is "All appeals must be taken within one hun

rendered, or in case a motion for a new trial is filed, within one hundred and eighty days after the ruling on such motion. The transcript must be filed within sixty days after the appeal is taken."

This amendment took effect May 16, 1927. [1, 2] The Attorney General has filed his motion to dismiss the appeal, stating in such motion the facts set forth in the record. That the judgment was rendered on the same day that the appellant prayed an appeal to the Supreme Court, which prayer was granted, and appellant allowed ninety days in which to prepare and file a bill of exceptions. Appellant then filed a petition to be let to bail during the pendency of such appeal and the court granted the same. It is further alleged that on the 14th day of July, 1927, the appellant served notice on the prosecut

Norval K. Harris and Lindley & Bedwell, ing attorney of his intention to appeal, which all of Sullivan, for appellant.

Arthur L. Gilliom, Atty. Gen., and Harry L. Gause, Deputy Atty. Gen., for the State.

WILLOUGHBY, C. J. This is an appeal from a judgment on a verdict of guilty of the crime of possessing intoxicating liquor. The record shows the following facts: The judgment was rendered April 13, 1927, at

notice was acknowledged on the 14th day
of July, 1927. That the transcript of the
record was filed in the office of the clerk of
the Supreme Court on October 11, 1927.
The motion further states that appellant has
failed to comply with section 16, c. 132, p.
421, of the Acts of 1927, which provides,
among other things, that the transcript must
be filed within sixty days after the appeal

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
161 N.E.-1

is taken. The service of notice of appeal upon the prosecuting attorney determines the time at which the appeal is taken. The appeal is deemed to have been taken by virtue of service of such notice as of the date of such service. Farlow v. State, 196 Ind. 295, 142 N. E. 849; Winsett v. State, 54 Ind. 437; State v. Quick, 73 Ind. 147; Farrell v. State, 85. Ind..221.. The transcript was not filed within the time fixed by law.

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It was competent for the Legislature to prescribe the time within which an appeal should be allowed, and if the appeal is not taken in conformity to such statute the court does not have jurisdiction of the appeal. It is therefore apparent that the motion of the Attorney General must be sustained and the appeal dismissed. Appeal dismissed.

DAVIS v. STATE. Supreme Court of Indiana.

(No. 25341.)

April 17, 1928. 1. Intoxicating liquors 236(13)-Evidence that defendant's wife held glass smelling of alcohol failed to bring case within statute making fluid poured out during search prima facie Intoxicating liquor (Burns' Ann. St. 1926, 88 2717, 2751).

Evidence in prosecution for possessing liquor, under Burns' Ann. St. 1926, § 2717 (Acts 1925, c. 48, § 4), that defendant's wife had glass in her hand and was standing in pantry in which there was a sink, but not showing that wife poured any fluid out of either pitcher or glass which contained odor of alcohol, held insufficient to bring case within Burns' Ann. St. 1926, § 2751 (Acts 1925, c. 48, § 36), providing that if fluid be poured out when premises are being searched it shall be prima facie intoxicating liquor intended for unlawful possession and sale. 2. Intoxicating liquors 236 (62)-Evidence of possession of vessels smelling of alcohol, uncorroborated, held insufficient to sustain conviction for possessing liquor (Burns' Ann. St. 1926, §§ 2717, 2751).

In prosecution for possessing liquor, under Burns' Ann. St. 1926, § 2717 (,Acts 1925, c. 48, § 4), evidence of empty pitcher and glass containing odor of alcohol found in defendant's home, though showing possession of vessels that had contained liquor, held not sufficient for conviction, under Burns' Ann. St. 1926, § 2751 (Acts 1925, c. 48, § 36), in absence of corroborating evidence that defendant possessed intoxicating liquor or that fluid was poured out during search.

Walterhouse & Miller, of Muncie, for appel

lant.

Arthur L. Giltiom, Atty. Gen., and Edward J. Lennon, Jr., Deputy Atty. Gen., for the State.

MARTIN, J. Police officers of the city of Muncie searched appellant's home for intoxicating liquor. They found an empty pitcher and glass, which, according to their testimony, had the odor of alcohol, but there was no other evidence that there had been any alcohol or other fluid in either the pitcher or the glass.

From a judgment, upon the jury's verdict of guilty assessing a fine of 30 days' imprisonment for the unlawful possession of intoxicating liquor, under section 4, c. 48, Acts 1925 (section 2717, Burns' 1926), appellant has appealed, assigning as error the overruling of his motion for a new trial in which he alleges, among other reasons, that the verdict is not sustained by sufficient evidence.

[1] Section 36, c. 48, Acts 1925 (section 2751, Burns' 1926), provides that:

when the

"If fluid be poured out * premises are being searched" it shall "be held to be prima facie intoxicating liquor and intended for unlawful possession and sale."

There was evidence that appellant's wife had the glass in her hand and was standing in a pantry in which there was a sink, but there was no evidence that she poured any fluid out of either the pitcher or the glass. The evidence was therefore insufficient to bring the case within this part of the section. [2] The section further provides that:

"Proof of the possession of empty vessels that have contained intoxicating liquor, shall be admitted as evidence of the illegal possession of such liquor."

If the evidence here can be held to show possession of vessels that had contained intoxicating liquor, we do not believe, in the absence of corroborating evidence, that appellant had possessed intoxicating liquor or evidence showing that fluid was poured out, that it is sufficient upon which to base a finding of guilty.

In Darbyshire v. State (1925) 196 Ind. 608, 149 N. E. 166, it was stated that the act prescribes a method of proof of facts when evidence in support thereof is destroyed by the act of the tenant or other persons, but that the Legislature does not have power to declare certain facts conclusive proof of guilt or to make an act prima facie evidence of

Appeal from Delaware Circuit Court; crime, regardless of its relevancy to a crimClarence W. Dearth, Judge.

Warren Davis was convicted of possessing intoxicating liquor, and he appeals. Reversed, with instructions to grant the motion for a new trial.

inal act.

The cases of Stankiewoecz v. State (1924) 194 Ind. 246, 142 N. E. 615, and Dilly v. State (1927) 199 Ind. —, 154 N. E. 865, relied upon by appellee, are easily distinguished from the case at bar. In each of those cases we held

(161 N.E.)

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I. False pretenses 49 (5)-Evidence held to sustain conviction for false pretenses as against contention that assignee relied on own investigation in purchase of fraudulent sales agreement (Burns' Ann. St. 1926, § 2947).

Evidence showing that defendant made false written representations as to sales agreement of automobile and customer's statement, and that another, relying on them, was induced to purchase and accept assignment of sales agreement, held to support conviction for false pretense under Burns' Ann. St. 1926, § 2947, as against contention that assignee relied on its own investigation in purchase of the sales agreement.

2. False pretenses 14-To warrant conviction for false pretense, injured party must be deceived and induced to part with money (Burns' Ann. St. 1926, § 2947).

Conviction cannot be had for false pretense under Burns' Ann. St. 1926, § 2947, unless state proves that injured party was deceived by false representations and induced by deceit to part with money!

chased from the Harrod Company, and receipted for, a certain therein specifically described Willys-Knight automobile, for which he paid in cash $600, and agreed to pay the balance, $1,114.54, December 6, 1923.

To the foregoing sales agreement was attached what purports to be "Customer's Statement" to the Harrod Overland Company "for the purpose of securing credit," which, among other things, gave three persons as references. and stated that the maker of the statement owned real estate one mile west of Bainbridge on the Rockville Road, value $4,000; that he is a single man, and had an income for the past twelve months of $1,600, and carried life insurance of $1,000, all of which representations in writing, both in the sales customer's statement, SO agreement and shown and made to the Atlas Securities Company, were false, and then known to be false by appellant, and the signature of Williams to the sales agreement a forgery, as appellant then well knew; that the Atlas Securities Company, relying upon the false representations so made by appellant, and believing the same to be true, was thereby deceived, and through such deception was induced to purchase and accept an assignment of the sales agreement, and to give appellant its certain bank check for $1,069.14, which appellant received and cashed for that amount to the injury of the drawer of the check.

[2] The facts we have recited are all reasonably inferable from the evidence. Appellant rests his contention of insufficient evi

Appeal from Criminal Court, Marion Coun- dence on the assertion that the drawer of ty; James A. Collins, Judge.

the check, as shown by the evidence, was not

Gailard Harrod was convicted of false pre deceived by any false statement or pretense tense, and he appeals. Affirmed.

of appellant, but relied upon its own investi.

Holmes & McCallister, of Indianapolis, for gation before parting with the check. Such appellant.

U. S. Lesh, of Indianapolis, for the State,

MYERS, J. Appellant was convicted of the offense known as false pretense, and sentenced, all in accordance with section 2947, Burns' 1926. His motion for a new trial, specifying that the finding of the court is contrary to law and not sustained by sufficient evidence, was overruled, and this ruling is assigned as error.

[1] We will give attention to the facts and evidence pertinent to the questions. involved in this appeal. On November 8, 1923, Corbin V. Harrod and this appellant, Gailard D. Harrod, were engaged in selling automobiles under the firm name of Harrod Overland Company, and on that day appellant presented to the Atlas Securities Company, a corporation, for purchase by the latter, in form, a conditional sales agreement between the Harrod Overland Company and William C. Williams, on the face of which it appeared that on November 6, 1923, Williams pur

insistence, if well taken, would require us to order a new trial, for in a case like this it is incumbent upon the state to prove "that the injured party was deceived by the false representations, and induced by the deceit to part with his money." Stifel v. State, 163 Ind. 628, 72 N. E. 600.

We have examined the evidence in the instant case with much care, but failed to find the evidence from which we can say that the representative of the Atlas Securities Company relied upon his own investigation in the purchase of the sales agreement. However, we do find his statement to the effect that he would investigate the references furnished by Williams, which, of course, would merely have reference to Williams personally and generally, but there is no evidence that this was done. Upon this state of the record, we are powerless to interfere with the finding of the trial court because contrary to law or not sustained by the evidence.

Judgment affirmed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

wherein Emil Stroeh was appointed receiver

COOPER v. FERGUSON WILLIS OIL CO. of defendant company, and ordered that said

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In action in which receiver for defendant corporation was appointed, where only plaintiff appealed from judgment setting aside appointment of receiver, receiver and stockholders, not assigning cross-errors, may not object to plaintiff's subsequent dismissal of appeal merely because dismissal would work hardship on such stockholders and receiver.

Appeal from Probate Court, Marion County; Mahlon E. Bash, Judge.

Action by David T. Cooper against the Ferguson Willis Oil Company, in which Emil Stroeh was appointed receiver of the defendant. From an order setting aside the order appointing the receiver, and from an order overruling a motion for a new trial, plaintiff appeals. On plaintiff's motion to dismiss the appeal. Motion sustained.

receiver turn over and deliver all property of defendant company in his possession to the proper officers of said company and report to the court his acts therein. within 15 days. And the plaintiff then filed his petition to reopen said cause and the court denied such petition and on the 3d day of December, 1924, the plaintiff filed his motion for a new trial. The motion for a new trial was overruled and

the plaintiff allowed 10 days in which to file all bills of exception.

To this transcript is attached an assignment of error entitled "David T. Cooper v. Ferguson Willis Oil Company, O. D. Frazee, Joseph Hamilton, W. A. Boyce, whose Christian Name is Unknown to Appellant." On January 6, 1926, appellees filed their motion to dismiss the appeal, which motion was overruled. On April 30, 1926, appellant, David T. Cooper, filed in this court his written dismissal of said appeal. On May 5, 1926, Emil C. Stroeh, receiver, filed a paper which he entitled, "Intervening Petition of Receiver," in which he alleges that prior to his appointment as receiver it was agreed by a majority of the stockholders that a receiver was to be

White & Jones, of Indianapolis, for appel- appointed in said cause, and that David T. lant.

Cooper was to file suit for and on behalf

M. L. Clawson, of Indianapolis, for appel- of himself and other stockholders of the Ferlee.

WILLOUGHBY, C. J. This is an appeal from a judgment vacating the appointment of a receiver. The record was filed in this court December 5, 1924. An order of submission was entered on January 5, 1925. On March 5, 1925, appellant's briefs were filed. No brief was ever filed on the part of appellee. On December 16, 1926, appellees presented a brief and asked leave to file it, this was denied because presented too late. The record discloses that the defendant, the Ferguson Willis Oil Company appeared by its attorney, W. W. Spencer, and waived notice and consented to the appointment of a receiver of the above named corporation, and that Emil Stroeh was appointed as such receiver and gave bond in the sum of $5,000, which bond was approved and the receiver, Emil Stroeh, was sworn to discharge the duties of his trust. Afterward on the 8th day of October, 1924, the receiver filed his petition for an order to sell the assets of the Ferguson Willis Oil Company for the purpose of winding up the affairs of said company and paying its debts. In the record it appears that on the 10th day of October, 1924, W. A. Boyce, O. D. Frazee, and Joseph Hamilton filed a petition to set aside the receivership. Afterward on the 27th day of October, 1924, the Ferguson Willis Oil Company filed its petition to vacate the receivership. And on the 25th day of November, 1924, the court set aside the order entered July 3, 1924,

guson Willis Oil Company, and that said suit was filed by an agreement of a majority of the stockholders; that affiant had been appointed as receiver and was duly acting as receiver for several months; that while acting as receiver said receiver agreed to sell to Everett W. Trook an option to purchase an oil lease in the state of Kentucky; that said option was owned and held in the state of Indiana; that said Trook has paid out several thousand dollars pursuant to his agreement with the said receiver and that there were assets belonging to the Ferguson Willis Oil Company, defendant herein, in the state of Indiana; that said receivership had been vacated by the judge of the probate court without permitting defendants herein to put in any evidence; that, after said receivership had been vacated by the judge of the Marion probate court, David T. Cooper, appellant herein, and other stockholders agreed among themselves that said Cooper should take an appeal in this cause for and on behalf of himself and the other stockholders in said company, and pursuant to said agreement this appeal has been taken; that on or about the 2d day of April, 1926, David T. Cooper and William Ferguson, president of the Ferguson Willis Oil Company, appeared before the clerk of this court and filed their motion to dismiss said appeal; that said Cooper had not informed any other stockholder of his intention of coming into this court and dismissing said appeal and the other stock

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