Campbell v. State

• Decision Date: 25 May 1897
• Citation: 148 Ind. 527,47 N.E. 221
• Parties: CAMPBELL v. STATE.
• Court: Indiana Supreme Court

148 Ind. 527

47 N.E. 221

CAMPBELL

v.STATE.¹

Supreme Court of Indiana.

May 25, 1897.

Appeal from criminal court, Marion county; Frank McCray, Judge.

Colin Campbell was convicted of the crime of embezzlement, and appeals. Affirmed.

James W. Noel, Frank J. Lahr, and Frank L. Littleton, for appellant. W. A. Ketcham, Merrill Moores, J. A. Pritchard, and C. S. Wiltsie, for the State.

JORDAN, J.

Colin Campbell, the appellant, was indicted for the crime of embezzlement; the indictment charging that he, as the agent and employé of the Metropolitan Life Insurance Company, did feloniously, etc., appropriate and convert to his own use money belonging to said company. Upon a trial before a jury he was convicted of the crime with which he was charged, and, over his motion for a new trial, was sentenced to suffer the punishment fixed by the jury, being a fine and imprisonment in the state's prison. The only error assigned in his appeal is the overruling of his motion for a new trial. Numerous errors are specified in the motion for a new trial; the principal one, however, as insisted by appellant's counsel, being that the lower court “erred in continuing the cause on August 17, 1896, in the absence of the defendant,and without judicially determining that cause existed for continuance.” This insistence, however, is not supported by any part of the record properly before us. The entry from the order book of the trial court shows that a jury to try the cause was impaneled on July 29, 1896, with the appellant present in person and by counsel. By the consent of both the defendant and the state, the jury, after being impaneled, was permitted to separate until the following day at 9 a. m. The record on this day, being July 30, 1896, discloses the presence of the appellant in court, and that, owing to the illness of one of its members, the jury, by consent, was permitted to separate until 9 o'clock a. m. on August 3, 1896. On this latter date, it further appears from the entry in the order book, appellant was present in court, but by reason of the continued sickness of the juror the trial of the cause was continued with appellant's consent until August 17, 1896, at 9 a. m. What proceeding, if any, was had on August 17th is not shown by the record. The next entry in the order book discloses that the trial was resumed on the 8th day of September, 1896. On the hearing of the motion for a new trial, an issue was raised by the appellant upon the question of a continuance being ordered on August 17th in his absence, and evidence, both oral and written, was heard by the court upon this issue, and after the hearing thereof the court seems to have found that the appellant was present in court at the time in controversy. None of this evidence, however, has been brought into the record by a bill of exceptions, and for this reason we are precluded from reviewing the decision of the court upon the evidence introduced upon this issue. Naanes v. State, 143 Ind. 299, 42 N. E. 609;Townsend v. State, 132 Ind. 315, 31 N. E. 797;Meredith v. State, 122 Ind. 514, 24 N. E. 161;Choen v. State, 85 Ind. 209. All appeals to this court are tried by the record. It furnishes the only evidence to sustain alleged errors of which a party complains. In the absence of such errors being properly exposed by the record, they cannot be considered, and all reasonable presumptions will be indulged by this court in favor of the rulings and judgment of the trial court. There being no record before us in any manner tending to...