Dolsen v. The State

• Decision Date: 01 April 1891
• Docket Number: 399
• Citation: 27 N.E. 440,1 Ind.App. 108
• Parties: VAN DOLSEN v. THE STATE
• Court: Indiana Appellate Court

27 N.E. 440

1 Ind.App. 108

VAN DOLSEN v. THE STATE

No. 399

Court of Appeals of Indiana

April 1, 1891

Petition for a rehearing overruled April 15, 1891.

From the Huntington Circuit Court.

Judgment affirmed, with costs.

C. W Watkins, for appellant.

A. G Smith, Attorney General, W. A. Branyan, Prosecuting Attorney, and G. A. Yopst, for the State.

OPINION

BLACK, C. J.

--Indictment under section 1991, R. S. 1881, charging that the appellant, a married man having a wife living, and a certain unmarried woman, during a specified period, did live and cohabit together in a state of fornication.

Counsel for appellant, in argument, objects to certain instructions given to the jury. The court's instructions, with certain instructions asked by the State, are set out in a bill of exceptions, in which, following the instructions, it is stated that, "these were all the instructions given in the cause, and the ones offered by the State that were given to the jury were marked in the margin 'given,' and those not given are noted on the margin thereof 'refused,' and those not marked were all given by the court as his instructions." After one of the court's instructions are the words "objected to," with the name of the appellant's attorney, without any date. In the margin opposite certain instructions asked by the State and marked "given," as so indicated by the bill of exceptions, are similar notations, with the addition of the name and official designation of the special judge who presided at the trial, no date being given.

In Behymer v. State, 95 Ind. 140, an attempt had been made in part after the mode prescribed by the civil code, without a bill of exceptions, to save an exception to the refusal of the trial court to give a certain instruction. There was an exception upon the margin of the instruction, signed by the judge, but it was not dated, as required by section 535, R. S. 1881.

The Supreme Court, not deciding whether in a criminal case an instruction and an exception to a refusal to give it could be brought into the record in the mode prescribed in section 535, supra, held that in the case before it there was not a compliance with the requirement of that section. The court said: "Under this section, the date is quite as material as the signature of the judge, first, because they are both required by the statute; and, second, because it is the date that shows when the exception was taken. It takes the place of a statement in a bill of exceptions, that the exception was taken at the time."

It is now established by the Supreme Court that section 535, supra, providing a summary method for reserving an exception to the giving, or the refusal to give, an instruction, without a bill of exceptions, and section 650, R. S. 1881, providing that papers filed in a cause may be made part of the record by order of the court, relate exclusively to civil causes; that an exception to the giving, or the refusal to give, an instruction in a criminal case, can not be saved by memorandum on the margin or at the close of the instruction, as provided for civil causes by section 535, supra; and that an instruction can not be brought into the record, or an exception thereto be saved in a criminal case otherwise than by a bill of exceptions. Leverich v. State, 105 Ind. 277, 4 N.E. 852; Hollingsworth v. State, 111 Ind. 289, 12 N.E. 490; Brown v. State, 111 Ind. 441, 12 N.E. 514; Delhaney v. State, 115 Ind. 499, 18 N.E. 49; Meredith v. State, 122 Ind. 514, 24 N.E. 161.

"The exceptions must be taken at the time of the trial." Section 1847, R. S. 1881.

The bill of exceptions should show that the exception was taken at the proper time. Bruce v. State, 87 Ind. 450.

In the case at bar the court gave fifteen days after the rendition of judgment in which to file a bill of exceptions, and the bill containing the instructions was filed ten days after judgment.

The instructions are in the record, but if it can be said that an exception to any instruction is shown by the bill, it is manifest that the record does not show that it was taken at the proper time.

Therefore the objections urged by counsel to instructions given do not...