Baldwin v. Threlkeld

• Decision Date: 01 January 1893
• Docket Number: 830
• Citation: 35 N.E. 841,8 Ind.App. 312
• Parties: BALDWIN v. THRELKELD
• Court: Indiana Appellate Court

35 N.E. 841

8 Ind.App. 312

BALDWIN v. THRELKELD

No. 830

Court of Appeals of Indiana

January 1, 1893

8 Ind.App. 312. At 322.

Original Opinion of September 26, 1893, Reported at: 8 Ind.App. 312.

Petition overruled.

OPINION

ON PETITION FOR A REHEARING.

REINHARD J.

The appellant's learned counsel have presented a petition for a rehearing upon the ground that this court erred in holding that the court below committed no error in excluding the proposed testimony of the contents of certain letters claimed to be material to the defense.

We held the ruling of the lower court proper for the reason, as stated in the former opinion, that the trial court had a right to deduce, from the act of destruction of the original letters by the appellant, the inference of a fraudulent design to do away with them. We are now met with the proposition that the ruling of the circuit court was not grounded upon this theory. In support of this proposition, we are directed to the statement in the record forming the basis of the objection as urged by appellee's counsel at the time it was proposed to introduce the evidence of the contents of the letters.

We do not think the position is tenable. The appellant here asserts that an error was committed. It is his duty to show such error affirmatively. If the ruling of the trial court can be supported upon any theory, whether the same was advanced at the time of the ruling or not, it must be upheld. If the appellee had interposed no objection whatever, and the court had excluded the testimony of its own motion, the ruling must stand in this court, unless the appellant succeeds in showing that it was wrong upon any theory. It is different where the court admits the proposed testimony and the appellant asserts error in such ruling. It then devolves upon the appellant to show that he made timely objection, and stated the reasons for the incompetency of the testimony. He will then be confined to the reasons urged below, because here, again, he must make it appear affirmatively that there was error, and he is confined to the grounds presented to the trial court. See Elliott's App. Proced., section 721

We did not undertake to adjudge what was the force and effect of the evidence of the destruction of the letters. We only held, and now hold, that the court had the right to infer from it a fraudulent design to do away with such proof as militated against his case. Of the...