Barton v. State
Decision Date | 20 January 1960 |
Docket Number | No. 29752,29752 |
Citation | 163 N.E.2d 600,240 Ind. 257 |
Parties | Paul BARTON, Appellant, v. STATE of Indiana, Appellee. |
Court | Indiana Supreme Court |
Perry W. Cross, Dennis & Cross, Muncie, for appellant.
Edwin K. Steers, Atty. Gen., Owen S. Boling, Asst. Atty. Gen., Harriette Bailey Conn, Deputy Atty. Gen., for appellee.
There is only one question presented in this appeal, all others being waived. The point presented is the first ground in appellant's motion for a new trial which is supported by affidavit and which reads in part as follows:
'3. That the court, while in the course of reading Instruction No. 8, read the second paragraph in the following manner:
On the said of the State a counter-affidavit was filed which reads in part as follows:
'3. That during the reading of Instruction No. 8, the Court in Line 2 of said instruction read the word 'indictment' as 'affidavit' and at said time counsel for the defendant made a remark to the Court that this instruction had been misread.
'And further affiant saith not.
'Paul E. Leffler'
It is argued that Rule 1-7 is applicable in this case and that 'No error with respect to the giving of instructions shall be available as a cause for new trial or on appeal, except upon the specific objections made as above required.' (Our italics.) The requirements above are that prior to the giving of instructions, objections must be made specifically thereto. The rule apparently does not cover the situation when the alleged error occurs in the misreading of the instructions.
It nevertheless has always been a general principle of law that objections to any erroneous action of the court must be made promptly at the time such injurious action is alleged to have occurred and as soon as it comes to the knowledge of the injured party. The policy behind such a principle is that the court should have an opportunity promptly to correct any error and at the same time the party claiming error should not be permitted, after waiting to find the outcome of the case, and if adverse, then to contend for alleged prejudicial error. 1 I.L.E. Appeals § 92, p. 587; 4 C.J.S. Appeal and Error § 246, p. 764.
In this case, by affidavit, the defendant claims he 'called the attention of the court to the misreading' of the instructions when the court finished reading it. The counter-affidavit does not categorically deny it. It should be...
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Hughes v. Hughes
...the defect in the record of the proceedings after having ignored an opportunity to seek correction of the defect. See Barton v. State (1960), 240 Ind. 257, 163 N.E.2d 600. But our examination cannot end at this point. Where there is no transcript or statement of the evidence and proceedings......
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Batchelor v. State
...privy to an "erroneous action of the court," from alleging "prejudicial error" following an adverse decision. Barton v. State , 240 Ind. 257, 259, 163 N.E.2d 600, 601 (1960) ; Durden , 99 N.E.3d at 649 (affirming defendant's conviction on grounds that he "invited the error as part of a deli......
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Sheridan v. Siuda
...be nimble to the extent that his objection be in time to allow the alleged error to be corrected. I.L.E. Appeals § 92, Barton v. State (1959) 240 Ind. 257, 163 N.E.2d 600. Such agility was demonstrated Moreover, the objection was specific and followed the correct procedure by requesting tha......
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...for the 'inaudibles.' Therefore, Auto-Teria will not be heard to complain about the conduct of the trial upon appeal. Barton v. State (1960), 240 Ind. 257, 163 N.E.2d 600. This cause is remanded with the instruction to the trial court to make its records reflect the filing of Auto-Teria's M......