Sutton v. State

240 Ind. 512 (1960) 166 N.E.2d 651

SUTTON
v.
STATE OF INDIANA.

No. 29,895.

Supreme Court of Indiana.

Filed May 9, 1960.

Thomas M. Crowdus and Patrick E. Chavis, Jr., both of Indianapolis, for appellant.

Edwin K. Steers, Attorney General, and Richard M. Givan, Deputy Attorney General, for appellee.

LANDIS, J.

Appellant was indicted for the manslaughter of her husband and after a trial by jury, was convicted of the lesser included offense of assault and battery with intent to commit a felony. She was sentenced to the Indiana Women's Prison for a period of one to ten years.

On this appeal the only error assigned is the overruling of appellant's motion for new trial.

Appellee (The State) has filed motion to dismiss or affirm asserting that the verdict was returned on July 29, 1959, but that the motion for new trial was not filed until 37 days thereafter on September 4, 1959, which was too late under Burns' § 9-1903 (being Acts 1905, ch. 169, § 282, p. 584), providing:

"The motion for new trial ... must be filed within thirty [30] days from the date of the verdict or finding;" and further that "... the motion must be filed in open court, if the court be then in session; otherwise it shall be filed with the clerk of the court."

The motion for new trial did not set forth any valid reason or excuse for not complying with the statute (See: Walker, alias Walters v. State (1948), 226 Ind. 552, 82 N.E.2d 245; Haley v. State of Indiana (1956), 235 Ind. 333, 133 N.E.2d 565), and since under the above statute for such a motion to be considered by this Court, it must have been filed not more than 30 days after the verdict or finding, no question is before us for decision on this appeal. See: Grecu v. State (1954), 233 Ind. 464, 120 N.E.2d 179; Walker, alias Walters v. State (1948), supra; Webster v. State (1935), 209 Ind. 274, 198 N.E. 781.

The judgment is affirmed.

Arterburn, C.J., and Jackson and Achor, JJ., concur.

Bobbitt, J., concurs in result.

NOTE. — Reported in 166 N.E.2d 651.