Pivak v. State

Full title: PIVAK v. STATE OF INDIANA

Court: Court of Appeals of Indiana

Date published: Nov 20, 1929

92 Ind. App. 263 (Ind. Ct. App. 1929)

168 N.E. 717

Opinion

No. 13,795.

Filed November 20, 1929. Rehearing denied February 21, 1930. Petition to transfer dismissed March 4, 1931.

CRIMINAL LAW — Motion to Suppress Evidence — Made Before Trial — Proper Ground for New Trial. — Alleged error in overruling a motion to suppress evidence, made and ruled on before trial, cannot be specified as "error of law occurring at the trial" under cl. 7 of § 2325 Burns 1926, but must be specified as a cause for a new trial under cl. 1 of said section, as "an irregularity in the proceedings of the court . . . by which the defendant was prevented from having a fair trial."

From Lake Criminal Court; Maurice E. Crites, Special Judge.

Tony Pivak was convicted of having unlawful possession of intoxicating liquor, and he appealed. Affirmed. By the court in banc.

Patterson Thiel, for appellant.

James M. Ogden, Attorney-General, and Merl M. Wall, Deputy Attorney-General, for the State.

REMY, J.

Appellant was charged by affidavit with unlawful possession of intoxicating liquor. Trial resulted in conviction.

Action of court in overruling motion for new trial is assigned as error.

Prior to commencement of the trial, the court overruled a motion of appellant to suppress certain evidence, and this ruling, as an "error of law occurring at the trial," was assigned as a reason for new trial, under cl. 7 of § 282 Code of Criminal Procedure (§ 2325 Burns 1926). To have presented any question on the ruling, it should have been assigned as a reason for new trial, under cl. 1, § 282, Code of Criminal Procedure, supra, which provides that a new trial may be granted for "Irregularities in the proceedings of the court or jury, for any order of the court, or abuse of discretion, by which the defendant was prevented from having a fair trial." Biddle v. State (1927), 199 Ind. 284, 157 N.E. 280; Bush v. State (1920), 189 Ind. 467, 128 N.E. 443; Chappelle v. State (1925), 196 Ind. 640, 149 N.E. 163.

Other alleged errors assigned as reasons for new trial, and referred to in appellant's brief, are not properly saved and presented, and are of such character as to require no consideration in this opinion.

Affirmed.