Grecco v. State

ON PETITION FOR REHEARING

Landis, J.

Appellant has filed petition for rehearing contending that this Court erred in its original opinion (1) in failing to give a decision of a substantial question arising on the record and presented by appellant’s brief, to-wit: as to whether the trial court erred in denying appellant’s motion to. separate the jury, and (2) .in holding this disposes of all questions presented ■to us on this appeal.

Our statement in our earlier opinion that such opinion “disposes of all questions presented to us on this *593appeal” was predicated on the fact that no other questions were properly presented or brought before us on this appeal.

In appellant’s original brief appellant asked that we consider whether certain instructions given by the court at the request of the State (Instructions 6, 7 and 8) were erroneous, but it is apparent that appellant failed to make any specific objections thereto in the trial court as required by Rule 1-7. Thus, all questions relative thereto are waived.

In the amendment to appellant’s original brief he urged the question he is now asserting, to-wit: whether the overruling of his motion to separate the jury was error. Appellant, however, did not set forth in his brief in the Concise Statement of the Record as required by Rule 2-17 (d)1 anything whatever with reference to the motion to separate, there being no showing as to whether such a motion was filed, or ruled on, or what its contents were.

This rule was designed to enable each judge to consider intelligently each question presented without resorting to the record (only one copy of which is available to be shared by the five judges of this Court), and accordingly it is well settled that where appellant’s brief fails to set forth the record so as to present fully a question without resorting to the record, the appellate tribunal is under no duty to search the record to reverse the cause. Marks v. State (1942), 220 Ind. 9, 40 N. E. 2d 108; Waggoner v. State (1949), 227 Ind. 269, 85 N. E. 2d 642; 9 Ind. Law Encyl., “Criminal Law,” §693, pp. 189, 190, and cases therein cited under notes 29, 30 and 31.

*594■ The appellant was represented by adequate counsel and no valid reason has been cited why this Court should act as co-counsel for the accused in this casé and, as such, participate in his defense and search the record in order to reverse.

It is our view that our previous opinion in this cause adequately dealt with all matters properly presented to us on such appeal, and as the petition for rehearing’ is not meritorious, the same is now overruled.

Bobbitt and Arterburn, JJ., concur. Jackson, C. J., votes for rehearing. Achor, J., not participating.

Note. — Reported in 166 N. E. 2d 180. Rehearing denied 167 N. E. 2d 714.

. Rule 2-17 (d) requires in part that appellant’s brief contain “A concise statement of so much of the record as fully presents every error and objection relied upon, referring to the pages and lines of the transcript.”