Curless v. State

• Decision Date: 11 May 1909
• Docket Number: 21,289
• Citation: 88 N.E. 339,172 Ind. 263
• Parties: Curless v. The State of Indiana
• Court: Indiana Supreme Court

88 N.E. 339

172 Ind. 263

Curless v. The State of Indiana

No. 21,289

Supreme Court of Indiana

May 11, 1909

Original Opinion of February 16, 1909, Reported at: 172 Ind 257.

OPINION

Montgomery, J.

Appellant 's counsel have presented an earnest argument urging a reconsideration of our holding in the original opinion, that instructions included in an original bill of exceptions containing the evidence, certified upon appeal, cannot be considered. In deference to this contention we deem it appropriate to elaborate the reasons which induced our conclusion.

A record for appeal, under our code, ordinarily consists of a copy or transcript of all papers, entries and proceedings in the cause in the lower court, or so much thereof as appellant in writing requests, duly certified and sealed. §§ 690, 691 Burns 1908, §§ 649, 650 R. S. 1881. This is the general rule, and any original paper, document or entry incorporated in the transcript will be disregarded unless express statutory authority for embracing it can be found. The clerk of the court is made the custodian of its records and files, and he may not certify original papers for use on appeal, except where the legislature has seen fit to confer such special authority. Reid v. Houston (1874), 49 Ind. 181, 183.

The first innovation upon the rule requiring transcripts of all papers and proceedings was made by the act of March 7, 1873 (Acts 1873, p. 194), providing for the appointment of an official reporter to take down the evidence in a cause, and for the filing with the clerk of a longhand copy thereof, and authorizing such clerk, in case of an appeal to the Supreme Court, to certify the same without copying, when so required, after such long-hand manuscript had been incorporated in a proper bill of exceptions. The act of 1873 was substantially reenacted in 1881 (§ 1405 R. S. 1881). Under this statute it was held that the longhand manuscript copy of the evidence could not be certified by the clerk, unless it had been first incorporated in the bill of exceptions ( Galvin v. State, ex rel. [1877], 56 Ind. 51), but when so incorporated and filed it might be taken from the remaining parts of the bill of exceptions, certified, and made a part of the record on appeal to this court without being copied. Hull v. Louth (1887), 109 Ind. 315, 337, 10 N.E. 270. This decision required the formal parts of the bill of exceptions and all other papers and proceedings to be transcribed by the clerk. This rule was modified by a later case, in which the court said: "A further contention of the appellees' counsel is that the clerk cannot certify to us the original bill of exceptions containing the reporter's longhand manuscript. We are referred to the case of Hull v. Louth [1887], 109 Ind. 315, 10 N.E. 270, where it was said that the longhand manuscript may be taken from the bill of exceptions and certified up, without copying, by the clerk. In our judgment the practice adopted in this case is preferable to that suggested in Hull v. Louth, supra. We adjudge the better rule to be this: Where a bill of exceptions upon a ruling denying a new trial is taken for the purpose of getting the stenographer's report of the evidence, with its incidents, into the record, the original bill may be certified up to this court as part of the record. All there is of such a bill, besides the report of the evidence, is composed of formal parts and brief recitals, so that little would be left to be copied if the report of the evidence were taken out. Confusion is avoided by sending up the bill without detaching the evidence, and only a very little matter outside of the report of the evidence comes up in its original condition. It is much more consistent with principle, and much safer to require the entire original bill to be certified, than it is to devolve upon the clerk the duty of determining what shall be left in and what taken out. * * * But the rule we declare does not have, and cannot be made to have, any application to any other bills of exceptions except such as are prepared for the purpose of bringing into the record the longhand manuscript of the official reporter and its necessary incidents. All other bills of exceptions must be copied by the clerk. Nor can the rule apply to a bill of exceptions wherein other matters than the longhand report and matters legitimately connected therewith are sought to be brought into the record. In order to come within the rule stated, the bill of exceptions must be confined to the single office of exhibiting the report of the evidence and the matters directly and properly pertaining thereto." McCoy v. Able (1892), 131 Ind. 417, 422, 30 N.E. 528. The court subsequently held that an original bill of exceptions properly certified, which contained instructions given and refused and exceptions thereto, in addition to the longhand manuscript of the evidence, was not a proper part of the record, and could not be considered for any purpose. Holt v. Rockhill (1896), 143 Ind. 530, 40 N.E. 1090.

It was said in Hull v. Louth, supra, that "where the longhand manuscript of the evidence is filed with and as a part of the bill of exceptions, that is a sufficient filing." This statement was, in effect, overruled by later cases, which declared that the filing of the longhand manuscript of the evidence must be antecedent to its incorporation and filing with the bill of exceptions. Holt v. Rockhill, supra; DeHart v. Board, etc. (1896), 143 Ind. 363, 41 N.E. 825; Smith v. State (1896), 145 Ind. 176, 42 N.E. 1019; Carlson v. State (1896), 145 Ind. 650, 44 N.E. 660. Frequent failures first to file the manuscript of the evidence, and the difficulty of determining whether there had been two filings or one, and, if two, which was first in time, and also a question whether it was the right or duty of the reporter to include documentary evidence in his manuscript of the oral testimony, prompted the statute of March 8, 1897 (Acts 1897, p. 244, § 657 Burns 1908). The substance of this act was explained in the case of Adams v. State (1901), 156 Ind. 596, 600, 59 N.E. 24, where it was said: "The taking down of the evidence and the noting of exceptions, under this latter act, is not limited to shorthand reporters to be appointed by the court, but such services may be performed by any one, and there is no requirement that the evidence shall be first filed with the clerk before it can be incorporated into a bill of exceptions." See, also, Weakley v. Wolf (1897), 148 Ind. 208, 47 N.E. 466. It was also held that the rule as to the contents of the bill was not broadened, and that instructions given and refused, incorporated in the general bill of exceptions which was certified up on appeal without copying under this statute, formed no part of the record. City of Michigan City v. Phillips (1904), 163 Ind. 449, 71 N.E. 205; Sharp v. State (1903), 161 Ind. 288, 68 N.E. 286; Baut v. Donly (1903), 160 Ind. 670, 67 N.E. 503; Andrysiak v. Satkoski (1902), 159 Ind. 428, 63 N.E. 854; Maynard v. Waidlich (1901), 156 Ind. 562, 60 N.E. 348; Adams v. State, supra; Leach v. Mattix (1897), 149 Ind. 146, 148, 48 N.E. 791.

This act makes it the duty of the clerk of the trial court to embrace such original bill, instead of the copy thereof, in the transcript only when requested to do so by the party appealing. In taking appeals under this act, it frequently occurred that the original bill was certified without request, or the precipe called for a transcript, and the original bill of exceptions was certified, or vice versa, and the court held that the record must be made up in conformity with the requirements of the precipe. Boos v. Lang (1904), 163 Ind. 445, 71 N.E 120; Tomlinson v. Bainaka (1904), 163 Ind. 112, 70 N.E. 155; City of Alexandria v. Liebler (1904), 162 Ind. 438, 70 N.E. 512; Mankin v. Pennsylvania Co. (1903), 160 Ind. 447, 67 N.E. 229; Drew v. Town of Geneva (1902), 159 Ind. 364, 65 N.E. 9; Berry v. Chicago, etc., R. Co. (1902), 158 Ind. 668, 64 N.E. 82; Marcy Mfg. Co. v. Flint & Walling Mfg. Co. (1902), 158 Ind. 173, 63 N.E. 207; Chestnut v. Southern Ind. R. Co. (1901), 157 Ind. 509, 62 N.E. 32; Johnson v. Johnson (1901), 156 Ind. 592, 60 N.E. 451; McCaslin v. Advance Mfg. Co. (1900), 155 Ind. 298, 58 N.E....