Fugate v. State ( 1949 )

The appellants and Raymond Gorski were jointly charged by amended affidavit with the felony of reckless homicide as defined by subsection (a) of § 47-2001, Burns' 1940 Replacement (Acts of 1939, ch. 48, § 52, p. 289). Each appellant was found guilty as charged by the court, and after judgment, appellants filed a joint and several motion for a new trial which, among other causes therefor, alleged the finding of the court was not sustained by sufficient evidence and was contrary to law. The overruling of the motion for a new trial as to each appellant is here assigned as error.

The Attorney General, with proper candor, has filed a memorandum brief in which he confesses error in that the verdict was not sustained by sufficient evidence and was contrary 1. to law. This confession of error is entitled to great weight in this court, but is not conclusive. Therefore, we have carefully examined all the evidence in the bill of exceptions as embodied in the transcript.

It would not be of benefit to the parties, the trial court or to the profession to here review all of the evidence most favorable to the state. It is sufficient to decide that the 2. evidence, when so considered, failed to prove either appellant guilty as a principal of the offense of reckless homicide, or that either appellant was a conspirator, or an accessory before the fact under § 9-102, Burns' 1942 Replacement.

Judgment reversed, with instructions to sustain appellants' motion for a new trial.

NOTE. — Reported in 88 N.E.2d 759.