Campbell v. State

• Citation: 148 Ind. 527, 47 N.E. 221
• Case Date: May 25, 1897
• Court: Supreme Court of Indiana

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,

[47 N.E. 222]

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...