Campbell v. The State

• Decision Date: 25 May 1897
• Docket Number: 18,139
• Citation: 47 N.E. 221,148 Ind. 527
• Parties: Campbell v. The State
• Court: Indiana Supreme Court

47 N.E. 221

148 Ind. 527

Campbell v. The State

No. 18,139

Supreme Court of Indiana

May 25, 1897

Rehearing Denied Oct. 13, 1897.

From the Marion Criminal Court.

Affirmed.

J. W Noel, F. J. Lahr and F. L. Littleton, for appellant.

W. A Ketcham, Attorney-General, Merrill Moores, C. S. Wiltsie and J. A. Pritchard, for State.

OPINION

Jordan, J.

Colin Campbell, the appellant, was indicted for the crime of embezzlement, the indictment charging that he as the agent and employe 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 nine 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 nine o'clock a. m. on August 3, 1896. On this latter date, it further appears from the entry in the order book, that 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 nine a. m. What proceeding, if any, was had on August 17 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 17, 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 can not 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 support the contention of the learned counsel for appellant upon the question which they seek to present, we are bound to presume, that if a continuance, as insisted, was ordered by the court on August 17, it was properly and rightly ordered with the accused present in court. Welsh v. State, 126 Ind. 71, 25 N.E. 883; Burrell v. State, 129 Ind. 290, 28 N.E. 699; Rhodes v. State, 23 Ind. 24.

It is next urged that the court erred in excluding certain evidence from the jury, and also in refusing to give to the jury certain...