Barnaby v. State

• Decision Date: 25 May 1886
• Docket Number: 12,906
• Parties: Barnaby v. The State
• Court: Indiana Supreme Court

7 N.E. 231

106 Ind. 539

Barnaby v. The State

No. 12,906

Supreme Court of Indiana

May 25, 1886

From the Clark Circuit Court.

The judgment is reversed, and the cause remanded for further proceedings.

J. G Howard, J. F. Read and W. Z. Stannard, for appellant.

F. T Hord, Attorney General, F. B. Burke, Prosecuting Attorney and W. B. Hord, for the State.

OPINION

Niblack, J.

This was a prosecution based upon an indictment against Henry S. Barnaby, Samuel Tilley and Nick Wayne. The indictment was in two counts. The first count charged the defendants with keeping a gaming house, and the second with knowingly permitting their house to be used for gaming.

Tilley entered a plea of guilty, and had a fine assessed against him, and a nolle prosequi was entered as to Wayne. On the 19th day of June, 1885, a jury was empaneled to try Barnaby, and, on the same day, returned a verdict finding him guilty as charged, and assessing against him a fine of one hundred dollars. On the 10th day of July, 1885, which was during the term at which the verdict had been returned, Barnaby entered a motion for a new trial, and the cause was continued until the ensuing October term, during which, that is to say, on the 7th day of November, 1885, the motion for a new trial was overruled, and sixty days' time was given within which to prepare and file a bill of exceptions, and the cause was again continued. No bill of exceptions was, however, filed within the time thus allowed. Afterwards, on the 4th day of January, 1886, which was during the regular January term of that year, the circuit court rendered judgment against Barnaby upon the verdict, which had been returned as above stated, and granted him thirty days within which to prepare and file a bill of exceptions. On the 1st day of February, 1886, a bill of exceptions was filed, and it has been certified to us as a part of the record in this cause.

Upon these facts counsel for the State make the point that when the circuit court, on the 7th day of November, 1885, granted an extension of sixty days' time within which a bill of exceptions might be prepared and presented, its power to extend time for such a purpose was exhausted, and that as the bill of exceptions certified to us, as above, was neither presented nor filed within the sixty days then allowed, it did not become, and, consequently, is not now, a part of the record, as it purports to be; that, for the reason stated, the order of January 4th, 1886, granting thirty days' additional time within which to prepare and present a bill of exceptions, was inoperative and void for any practical purpose.

Section 1847, R. S. 1881, bearing upon the question involved, is as follows: "All bills of exceptions, in a criminal prosecution, must be made out and presented to the judge at the time of the trial, or within such time thereafter as the judge may allow, not exceeding sixty days from the time judgment is rendered; and they must be signed by the judge and filed by the clerk. The exceptions must be taken at the time of the trial."

Section 120 of the criminal code of 1852, 2 R. S. 1876, page 405, contained substantially the same provisions, except that the time for filing a bill of exceptions could not be extended beyond the term at which the trial occurred. In construing that section this court held, in the case of Jenks v. State, 39 Ind. 1, that the proceedings in a criminal cause are in fieri until the judgment is rendered, and that the word "trial," as used in that section, included all the steps taken in the cause from its submission to the court or jury to the rendition of the judgment. In placing a construction upon section 1847, above set out, this court, in the case of Bruce v. State, 87 Ind. 450, adopted and adhered to the meaning attached to the word "trial" by the case of Jenks v. State, as above, and further held that, while exceptions to be available must be taken at the time the decision complained of was made, the exceptions thus taken will become a part of the record by being...