Barker v. State
| Decision Date | 27 October 1919 |
| Docket Number | No. 23564.,23564. |
| Citation | 188 Ind. 493,124 N.E. 681 |
| Parties | BARKER v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Vigo County; Arthur Z. Thomas, Judge.
Jesse Barker was convicted of unlawfully maintaining a place where intoxicants were sold, and of keeping of intoxicants with intent to sell them, and he appeals. Affirmed.
Sweet & Littlefield and P. O. Colliver, all of Terre Haute, for appellant.
Ele Stansbury and Edward M. White, both of Indianapolis, for the State.
The appellant was convicted in the Vigo circuit court in a prosecution under section 4 and section 20 of chapter 4, of the Acts of 1917, known as the Prohibition Act. The affidavit was in two counts. The first count charges that at the time and place named in the affidavit the defendant “did then and there unlawfully maintain and assist in maintaining a room, place and building where intoxicating liquors were then and there sold, bartered and given away.” The second count charges that at the time and place named in the affidavit the defendant “did then and there unlawfully keep intoxicating liquors with intent to sell, barter, exchange and give the same away in violation of the laws of the state of Indiana.” No motion was made to quash either count of the affidavit. The defendant pleaded not guilty, and a trial by jury resulted in a verdict of guilty. Judgment being rendered on the verdict, the defendant appeals, and assigns as error that the court erred in overruling appellant's motion for a new trial. The motion for a new trial names nine reasons, the first seven of which are based on alleged errors in giving or refusing instructions. The others are that the verdict is not sustained by sufficient evidence and is contrary to law.
[1] The instructions given and those tendered and refused are attempted to be brought into the record by a bill of exceptions, but an examination of the record fails to show that the bill of exceptions was filed with the clerk as required by statute. Section 2163, Burns 1914. The instructions in a criminal case can only be brought into the record by a bill of exceptions, and it must affirmatively appear from the record that the bill of exceptions was filed with the clerk, and the filing cannot be shown by mere recitals in the bill or by the file mark of the clerk thereon, and the filing of the bill must be done after it has been signed. Stewart v. State, 113 Ind. 505, 16 N. E. 186;Drake v. State, 145 Ind. 210, 41 N. E. 799, 44 N. E. 188;Harris v. State, 155 Ind. 15, 56 N. E. 916;Merrill v. State, 156 Ind. 99, 59 N. E. 322;Donovan v. State, 170 Ind. 123, 83 N. E. 744;Carr v. State, 175 Ind. 241, 93 N. E. 1071, 32 L. R. A. (N. S.) 1190;Stucker v. State, 171 Ind. 441, 84 N. E. 971;Donovan v. State, 185 Ind. 15, 111 N. E. 433;Messel v. State, 176 Ind. 214, 95 N. E. 565;Hahn v. State, 185 Ind. 210, 113 N. E. 725;Goodman v. State, 121 N. E. 826.
Unless the bill of exceptions is signed by the judge and afterwards filed with the clerk, and this fact is affirmatively shown in the record, it forms no part of the record, and cannot be considered. In this case the record contains what purports to be a bill of exceptions “relating to the instructions and the rulings of the court thereon”; but, as it is not affirmatively shown by the record that it was filed with the clerk, it is not a part of the record, and cannot be considered. It follows that no question is presented on the giving or refusing of instructions.
[2][3] The appellant contends that the verdict of the jury is not supported by sufficient evidence; that when there is a reasonable doubt whether a defendant's guilt is satisfactorily shown, he must be...
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