Barrows v. The State

• Decision Date: 18 December 1903
• Docket Number: 20,160
• Citation: 69 N.E. 253,161 Ind. 585
• Parties: Barrows v. The State
• Court: Indiana Supreme Court

69 N.E. 253

161 Ind. 585

Barrows v. The State

No. 20,160

Supreme Court of Indiana

December 18, 1903

From Marion Criminal Court (33,409); W. P. Reagan, Special Judge.

Raymond Barrows was convicted of embezzlement, and appeals.

Affirmed.

W. W Herod, W. P. Herod and H. D. Merrifield, for appellant.

C. W Miller, Attorney-General, C. C. Hadley, W. C. Geake and L. G Rothschild, for State.

OPINION

Jordan, J.

Appellant was charged by indictment, tried by a jury, and convicted of the crime of embezzlement, and over his motion for a new trial was sentenced by the court to pay a fine of $ 1, and to be imprisoned in the Indiana state prison not less than two nor more than fourteen years, disfranchised, and rendered incapable of holding any office of trust or profit for a period of one year. From this judgment he appeals, and the only error assigned is that the lower court erred in overruling his motion for a new trial.

At the very threshold of the consideration of the case we are met with the contention of the Attorney-General that the questions which appellant seeks to present under the ruling of the lower court upon his motion for a new trial can not be considered, for the reason that the record does not disclose that he reserved any exception to the action of the court in denying the motion for a new trial. An examination of the record verifies the statement of the Attorney-General. The rule is well affirmed that in order to be available on appeal to this court it must appear by the record that an exception was reserved by the aggrieved party to the rulings of the court which he seeks to have reviewed under his motion for a new trial, and it must further appear that he reserved an exception to the overruling of the motion for a new trial. Ewbank's Manual, 81.

In Henley v. McNoun, 76 Ind. 380, the court said: "The only error assigned upon this record is the overruling of the motion of appellants for a new trial. The record does not show that the appellants excepted to the ruling. There is, therefore, no question before us. Buskirk's Practice, 144, 289, and cases cited."

In Fletcher v. Waring, 137 Ind 159, 36 N.E. 896, this court again affirmed the rule that in an appeal in which the only error assigned is the overruling of the motion for a new trial, and it is not shown by the record that an exception was taken to such ruling, no question is before the court for decision. See, also, ...