ON PETITION FOR REHEARING The appellant, in his petition for rehearing filed by attorneys who have not heretofore represented him, correctly asserts that under the new rule (Rule 1-7 of the Supreme Court of 7. Indiana), error may be predicated on the overruling of a motion for a directed verdict. In his motion for a directed verdict, the appellant raised two questions. 1. That the evidence does not show commission of an abortion prior to the date charged. 2. That the evidence does not show that an abortion was committed. *Page 288
The original opinion disposed of both propositions. In effect, it held that there was no failure to prove the allegations contained in the indictment and that there was sufficient evidence from which the jury could find for the State on each material allegation.
In the petition for rehearing it is asserted that the attorney for the appellant did not do his duty in presenting two questions which were raised in the motion for a new trial. We are 8. confined to the record, and cannot take the bare assertion of the new attorney that the record is not complete or that some things happened that are not shown of record.
The two reasons which were set forth in the motion for a new trial, and then abandoned by appellant, were based upon alleged misconduct of the prosecutor. From an examination of the 9. claimed errors and the record, we feel that the appellant's attorney concluded that the two matters asserted in the motion, which were not briefed, raised no question of error for which a reversal could be expected. It seems to us that his reasoning was sound.
It is also asserted that the appellant's attorney neglected the rights of his client. These claims of the new attorney are outside the record. They are not shown to have any 10. substantial factual basis, and certainly on rehearing, we should not permit additional matters to be raised as an afterthought — matters never before called to the attention of the court.
The original opinion is modified in conformity with this opinion, and the petition for rehearing is denied.
NOTE. — Reported in 60 N.E.2d 526. *Page 289