Opinion
Nos. 28,511, 28,512, 28,513.
Filed May 6, 1949.
1. CRIMINAL LAW — Appeal — Assignment of Errors — Motion for New Trial — Insufficiency of Evidence and Misconduct of Counsel — Omission of Statement to Support Assignment of Errors — Waiver of Error. — Where appellant assigned as error the overruling of the motion for new trial based on insufficiency of evidence and misconduct of prosecuting attorney, but failed to set out any statement as to whether the prosecuting attorney was guilty of misconduct nor any ruling of the trial court in connection therewith, such omission waived the alleged error. p. 272.
2. CRIMINAL LAW — Appeal — Briefs — Assigned Error That Verdict Was Not Sustained by Sufficient Evidence — Omission of Condensed Recital of Evidence — Rules of Court — Error Waived. — Where appellant failed to include in his brief a condensed recital of the evidence in narrative form so as to present the substance clearly and concisely, as provided by rules of court, such omission presented no question as to the sufficiency of the evidence on appeal, because it would be deemed waived under rules of court. Rules of the Supreme Court, 2-17 (e, h). p. 272.
3. CRIMINAL LAW — Appeal — Briefs — Propositions, Points and Authorities — Statement of Abstract Propositions of Law — Failure to Apply Proposition of Law to Facts in Issue — Rules of Court — Error Waived. — Where appellant's brief set out three abstract propositions of law under improper heading of "Arguments and Authorities" without making any application whatever to the issues on appeal, the assigned error will not be considered by Supreme Court, as provided by rules of court, because merely stating an abstract proposition of law or the failure to apply a proposition of law to the facts in issue is a waiver of the claimed error. Rules of Supreme Court, 2-17 (f). p. 273.
4. CRIMINAL LAW — Appeal — Briefs — Propositions, Points and Authorities — Must Be Supported by Argument — Failure to Comply Is a Waiver. — Where appellant's brief failed to comply with rules of court, which require that "Propositions, Points and Authorities" in appellant's brief be followed and supported by an argument thereon, such failure to so comply with the rules is a waiver of the error assigned. Rules of the Supreme Court, 2-17 (h). p. 273.
5. CRIMINAL LAW — Appeal — Briefs — Failure to Comply with Rules of Court — Supreme Court Not Required to Search Record for Reversal. — Where appellant's brief failed to comply with rules of court on appeal from conviction in a criminal case, Supreme Court is not required to act as counsel for the accused and search the record and books for some ground on which to base a reversal. Rules of the Supreme Court, 2-17. p. 274.
6. CRIMINAL LAW — Appeal — Briefs — Failure to Comply with Rules of Court — Motion to Dismiss — State Need Not File Brief on Merits. — Where appellant's brief failed to comply with rules of court on appeal from conviction in a criminal case, there would be no need for putting the State to additional expense of filing a brief on the merits when the result would be an affirmance of the convictions. Rules of the Supreme Court, 2-17. p. 274.
7. CRIMINAL LAW — Appeal — Briefs — Failure to Comply with Rules of Court — May Be Grounds for Dismissal. — Failure of appellant to file a brief on appeal, as required by the rules of court, may be cause for dismissal of the appeal. Rules of the Supreme Court, 2-17. p. 274.
8. CRIMINAL LAW — Appeal — Briefs — Failure to Comply with Rules of Court — Motion to Dismiss — No Error Presented by Brief — Affirmance of Judgment. — Where appellant's brief failed to comply with rules of court on appeal from conviction in a criminal case, and there was no error presented by such brief, the Supreme Court may affirm the judgment on motion to dismiss by the state. Rules of the Supreme Court, 2-17. p. 274.
From the Porter Circuit Court, Walter M. Crisman, Judge.
Hazel Waggoner was convicted by the State of Indiana in three separate cases for malicious trespass, disorderly conduct and trespass, and she appeals. Motion to dismiss appeals filed by the State.
Affirmed.
Edward M. Sutton, of Gary, for appellant.
J. Emmett McManamon, Attorney General, Charles F. O'Connor, Deputy Attorney General, Merl M. Wall, Deputy Attorney General, for appellee.
These are appeals from separate judgments convicting the appellant of malicious trespass in No. 28511, disorderly conduct in No. 28512, and trespass in No. 28513. The three cases were tried at the same time by the same jury, which returned verdicts of guilty and assessed the punishment. Appellant's three briefs are substantially the same so that each appeal may be decided by one opinion. The issues presented for our consideration arise upon the State's separate motions to dismiss the appeals.
The error assigned in each appeal is the overruling of the motion for new trial, which in each case charged the insufficiency of the evidence and misconduct of the 1. prosecuting attorney. There is no statement as to wherein the prosecuting attorney was guilty of any misconduct, nor is any ruling of the court in connection therewith set out as error. Hill v. State (1908), 169 Ind. 561, 83 N.E. 243, holds such omission waives the alleged error.
There is no condensed recital of the evidence in narrative form in any brief. "If the insufficiency of the evidence to sustain the verdict or finding of fact or law is assigned, the 2. statement shall contain a condensed recital of the evidence in narrative form so as to present the substance clearly and concisely. . . ." Rule 2-17(e). Clause (h) of the same rule provides that "Errors assigned and not treated as herein directed shall be deemed to be waived." This court has consistently held that such a failure presents no question as to the sufficiency of the evidence on appeal. Golden Guernsey Farms, Inc. v. State (1945), 223 Ind. 606, 63 N.E.2d 699; De La Tour v. State (1929), 201 Ind. 14, 165 N.E. 753; Grose v. State (1925), 197 Ind. 331, 149 N.E. 722; Earl v. State (1926), 197 Ind. 703, 151 N.E. 3; Fronczak v. State (1925), 197 Ind. 48, 149 N.E. 725; Hunt v. State (1921), 191 Ind. 406, 409, 133 N.E. 8; Ogle v. State (1912), 178 Ind. 672, 100 N.E. 5; Carmody v. State (1912), 178 Ind. 158, 98 N.E. 870.
Nor do any of appellant's briefs comply with clause (f) of Rule 2-17, which requires:
"The briefs shall contain under the heading, `Propositions, Points and Authorities,' a copy of each assigned error relied on, designated by number as in the original assignment of error, and in case the error assigned is the overruling of the motion for a new trial, then the causes relied upon shall be numbered as in the motion. Each assignment shall be supported by separately numbered propositions, concisely stating the basis of the objection to the ruling complained of. Each proposition shall be supported by separately numbered or lettered points or statements of rules of law applicable thereto, with citation of authorities in support thereof. Assigned error which is not set out in this part of the brief and supported by propositions, points and authorities, will not be considered."
Under the improper heading of "Arguments and Authorities," the appellant sets out three abstract propositions of law, without making any application whatever to the issues she seeks to 3. present by the appeals. Merely stating an abstract proposition of law, or failure to apply a proposition of law to the facts in issue, is a waiver of the claimed error. This court has many times so held. Ogle v. State, supra; Tow v. State (1926), 198 Ind. 253, 151 N.E. 697; Carlin v. State (1933), 204 Ind. 644, 184 N.E. 543; Winters v. State (1926), 199 Ind. 719, 154 N.E. 478; Bleiweiss v. State (1918), 188 Ind. 184, 119 N.E. 375, 122 N.E. 577. See also Sichick v. State (1929), 89 Ind. App. 132, 166 N.E. 14.
The briefs also fail to comply with clause (g) of Rule 2-17, which requires the "Propositions, Points and Authorities" to be followed and supported by an argument thereon. Failure 4. to so comply is a waiver. Clause (h) of Rule 2-17. See Boughan v. State (1923), 193 Ind. 66, 138 N.E. 87.
Rule 2-17 (g). "Following that part of the brief headed, `Propositions, Points and Authorities,' and under the heading `Argument,' there shall be a discussion elaborating the propositions and points of law and authorities theretofore cited. All argument and elaboration of propositions and application of legal principles and authorities to the questions presented shall be confined to this part of the brief."
These appeals fail to present a case where a good faith effort has been made to comply with the requirements on appeal. The defects extend to more than mere form; they go to the 5-8. substance of the briefs themselves. Since the filing of the motions to dismiss, the appellant has not attempted to correct the defects challenged by such motions. As the Attorney General has suggested, we are not required in such appeals to act as counsel for appellant, and search the record and the books for some ground on which to base a reversal. There is no necessity for putting the State to the additional expense of filing a brief on the merits when the result in each appeal would be an affirmance. A failure to file a brief as required by the rules of this court may be cause for a dismissal of the appeal. Cutler v. State (1878), 62 Ind. 398. Or on a motion to dismiss by the State, where no error has been presented to this court, the judgments may be affirmed. Winters v. State, supra. The latter course seems desirable in these appeals.
Judgments affirmed.
NOTE. — Reported in 85 N.E.2d 642.