Adams v. State

• Decision Date: 18 October 1912
• Docket Number: No. 22,202.,22,202.
• Parties: ADAMS v. STATE.
• Court: Indiana Supreme Court

179 Ind. 44
99 N.E. 483

ADAMS
v.
STATE.

No. 22,202.¹

Supreme Court of Indiana.

Oct. 18, 1912.

Appeal from Circuit Court, Monroe County; James B. Wilson, Judge.

Silas Adams was convicted of riotous conspiracy, and he appeals. Affirmed.

Robert W. Miers, Ira C. Batman, Robert G. Miller, and James W. Blair, all of Bloomington, for appellant. Thomas M. Honan and Thos. H. Branaman, both of Indianapolis, for the State.

MONKS, J.

Appellant and seven other persons were charged in the court below with the crime of riotous conspiracy under the provisions of section 2335, Burns 1908. Appellant was granted a separate trial, and was convicted of the offense charged. The only error assigned is that the court erred in overruling his motion for a new trial. It was assigned as cause for a new trial that the court erred in overruling appellant's motion for a continuance on account of the absence of certain “competent and material witnesses,” naming them.

[1] The affidavit for a continuance was filed and overruled on January 22, 1912. Section 2165, Burns 1908, in regard to criminal procedure, provides: “That every pleading, motion in writing, report, deposition or other paper, filed or offered to be filed in any cause or proceeding whether received by the court, refused or stricken out shall be a part of the record from the time of such filing or offer to file and any order or action of the court in respect to any such pleading, motion in writing, report, deposition or other paper and every exception thereto taken by any party shall be entered by the clerk on the minutes or record of the clerk and the same when so entered shall be a part of the record without any bill of exceptions.” Said affidavit for a continuance does not appear in the record proper, but does appear in a bill of exceptions, and not otherwise. Under the statute quoted an affidavit for a continuance, the action of the court thereon, and the exceptions to such ruling of the court are in the record without a bill of exceptions. It has been expressly held by this court that: “When matters properly a part

[99 N.E. 484]

of the record without a bill of exceptions are only exhibited in a bill of exceptions copied into the transcript, and do not appear elsewhere in the transcript, they cannot be considered on appeal.” Vest v. State, 174 Ind. 556, 92 N. E. 227;Harris v. State, 155 Ind. 15, 56 N. E. 916;Wilson v. State, 156 Ind. 631, 635, 636, 59 N. E. 380, 60 N. E. 1086, and cases cited. The order book entry showing the filing of said motion for a continuance on January 22, 1912, is copied into the transcript, but, instead of copying said affidavit into the transcript as a part of said entry the clerk has referred to bill of exceptions No. 1 as containing the same. This did not, however, make said affidavit a part of said entry or a part of the record. Wilson v. State, 156 Ind. 631, 637, 638, 59 N. E. 380, 60 N. E. 1086, and cases cited.

The conduct of two of the counsel for the state in their argument to the jury is also complained of. Appellant's counsel objected to the language used by one of said counsel, and moved the court to set aside the submission of the cause and discharge the jury on account of said alleged misconduct and language which motion the court overruled, to which ruling appellant at the time excepted.

[2] The language used by said counsel for the state to which objection was made was in response to a statement or argument of one of the counsel for appellant, and we cannot say from the record that the privilege of a fair and proper discussion of the case was transgressed. Livingston v. State, 141 Ind. 131, 133, 40 N. E. 684;Combs v. State, 75 Ind. 215, 218, 221.

[3] The language of the other counsel for the state was objected to by appellant, but no motion was made to withdraw the submission and discharge the jury on account of the alleged misconduct of said counsel, or asking the court to instruct the jury to disregard the alleged improper statements of said counsel. Unless such action was taken by appellant at the time of the alleged misconduct of said counsel for the state, he cannot take advantage of it on appeal. The record not showing that any such action was taken in the court below, no question concerning the alleged misconduct of said counsel for the state is presented for review in this case. Ewbank's Manual, § 49, p. 73; Fowler v. Newsom, 174 Ind. 104, 111, 90...