Donovan v. State

• Decision Date: 16 February 1916
• Docket Number: No. 22886.,22886.
• Citation: 111 N.E. 433,185 Ind. 15
• Parties: DONOVAN v. STATE.
• Court: Indiana Supreme Court

185 Ind. 15

111 N.E. 433

DONOVAN

v.STATE.

No. 22886.

Supreme Court of Indiana.

Feb. 16, 1916.

Appeal from Criminal Court, Marion County; James A. Collins, Judge.

John Donovan was convicted of crime, and he appeals. Affirmed.

William E. Reiley, of Indianapolis, for appellant Evan B. Stotsenburg, Atty. Gen., Alvah J. Rucker, of Indianapolis, and Horace M. Kean, Leslie R. Naftzger, Omer S. Jackson, and Wilbur T. Gruber, Asst. Attys. Gen., for the State.

COX, J.

Appellant was convicted in the city court of the city of Indianapolis of the offense of keeping a gaming house. He appealed to the criminal court and was again convicted. From the latter judgment he prosecutes this appeal, and the only error well assigned is that the court erred in overruling his motion for a new trial. The causes for a new trial which are urged as grounds of error requiring a reversal involve charges of the admission of improper evidence and the giving by the court of an instruction to the jury claimed to be erroneous and harmful.

The Attorney General meets these assertions of error with the contention that, as they require bills of exception containing the evidence and the instructions to present them for consideration on appeal, they are not available for the reason that, it is claimed, neither the evidence nor the instructions are brought into the record by bill. The settled practice requires that the position of the Attorney General be sustained.

[1] It is an elementary rule that the exceptions taken during the trial to the admission or exclusion of evidence and presented to the trial court as cause for new trial must, when presented on appeal for review, be shown by a bill of exceptions.

[2] It has also long been definitely settled that in an appeal in a criminal case instructions presented for review must be brought into the record by bill of exceptions, otherwise they cannot be considered. Carr v. State (1911) 175 Ind. 241, 243, 93 N. E. 1071, 32 L. R. A. (N. S.) 1190;Donovan v. State (1908) 170 Ind. 123, 83 N. E. 744.

[3] Following the record entries in the transcript before us appears the certificate of the clerk, with his signature and the seal of the court attached thereto, authenticating the transcript. Following this certificate and attached to the transcript of the record there appears what purports to be the original bill of exceptions containing the evidence and a bill of exceptions containing the instructions. It nowhere appears, other than by a file mark of the clerk on each of the bills, that they were ever filed with the clerk after being signed by the judge as required by the statute. Section 2163, Burns 1914. It has...