Dunn v. The State

• Decision Date: 18 February 1904
• Docket Number: 19,956
• Citation: 70 N.E. 521,162 Ind. 174
• Parties: Dunn v. The State
• Court: Indiana Supreme Court

70 N.E. 521

162 Ind. 174

Dunn v. The State

No. 19,956

Supreme Court of Indiana

February 18, 1904

From Allen Circuit Court; Edward O'Rourke, Judge.

Charles W. Dunn was convicted of murder in the first degree and he appeals.

Reversed.

H. G Colerick, J. M. Barrett and S. L. Morris, for appellant.

C. W Miller, Attorney-General, E. V. Emrich, F. A. Emrich and S M. Hench, for State.

Hadley J. Monks and Dowling, JJ., dissent.

OPINION

Hadley, J.

Appellant was found guilty of murder in the first degree, and his punishment assessed at imprisonment in the state prison for life. The only error assigned and not waived is the overruling of his motion for a new trial.

The questions presented arise upon the bill of exceptions, which counsel for the State insist is not in the record, because not presented to and signed by the judge and filed within the time allowed by statute.

The verdict was returned November 7, 1901. Appellant's motion for a new trial was filed November 9, 1901, and overruled December 2, 1901. One hundred twenty days were given in which to file a bill of exceptions. On the same day a motion in arrest of judgment was made which was not decided until February 3, 1902, when it was overruled, and judgment was rendered on the verdict. The court on that day gave the appellant sixty days within which to prepare and file a bill of exceptions. The bill was presented to the judge March 6, 1902, and the same was duly signed, and afterwards filed March 26, 1902. The signing and filing appear to have taken place on the same day. The points are made that the court was not authorized to grant the 120 days from December 2, 1901, for the filing of the bill, nor to allow sixty days from February 3, 1902, for such presentation and filing; that it does not appear that the bill was filed after it was signed by the judge; and that a copy, and not the original bill containing the evidence, should have been certified to this court.

The statute regulating the filing of bills of exceptions in criminal cases is as follows: "All bills of exceptions, in a criminal prosecution, must be made out and presented to the judge at the time of the trial, or within such time thereafter as the judge may allow, not exceeding sixty days from the time judgment is rendered." § 1916 Burns 1901. At the time the motion for a new trial was overruled, an exception was properly reserved. The 120 days granted by the court for the filing of the bill of exceptions did not expire until April 1, 1902, nor extend more than sixty days beyond the date of the judgment. The bill was filed fifty-one days after the judgment was rendered, and was within the time allowed. Besides, it appears that at the time the judgment was rendered the court made a further order allowing the appellant sixty days from that date to prepare and file his bill, and the time so allowed did not expire until April 4, 1902. Under either order, the bill was filed in time. Barnaby v. State, 106 Ind. 539, 7 N.E. 231; Colee v. State, 75 Ind. 511; Hunter v. State, 102 Ind. 428, 1 N.E. 361; Bruce v. State, 141 Ind. 464, 40 N.E. 1069; Hunter v. State, 101 Ind. 406; Herron v. State, 17 Ind.App. 161, 46 N.E. 540.

Where the signing and the filing of the bill appear to have been done on the same day, it will be presumed, in the absence of anything to the contrary in the record, that the bill was signed before it was filed. Martin v. State, 148 Ind. 519, 47 N.E. 930; Bradley, etc., Co. v. Whicker, 23 Ind.App. 380, 55 N.E. 490.

Under the act of 1897 (Acts 1897, p. 244, § 638a Burns 1901) it was proper to make the original bill of exceptions containing the evidence a part of the record. The act expressly extended to criminal cases. Adams v. State, 156 Ind. 596, 59 N.E. 24.

There were many reasons presented by appellants as grounds for a new trial. In the course of his cross-examination the prosecuting attorney asked the defendant if he did not tell Edna Cothrell, as he took her to Churubusco, that he (witness) had taken Alpha Bennett and her sister to the World's Fair at Chicago, and that they had registered at the hotel as man and wife, occupied the same room, and had a good time. Appellant answered the question in the negative. Subsequently, in rebuttal, the court permitted Edna Cothrell, over appellant's objection, to testify concerning the statement denied by appellant. This ruling of the court is challenged, and urged as a reason for a new trial. It is insisted by appellee that the subject-matter complained of is not set forth in the motion for a new trial with sufficient certainty to present any question, because neither the answer, nor the substance of the answer to the question is set out in the motion. The assignment in the motion for a new trial is as follows: "Error of law occurring on said trial in this: that the court erred in permitting the State to ask its witness, Edna Cothrell, on rebuttal, and in permitting said witness to answer the following question: 'Edna, I will ask you to state to the jury whether or not at that time, in that conversation you had with Dunn going to Churubusco or coming from Churubusco, he stated to you that during the World's Fair that he had taken Alpha Bennett and sister with him to Chicago, and that they had registered at the boarding house or hotel as man and wife, whether they occupied the same room and had a good time?" The record shows that the witness answered the question, "Yes, sir."

A litigant who desires to present to an appellate tribunal for review rulings of the trial court made in the course of the trial, and which he deems erroneous and prejudicial, is required to state such controverted matter in a motion for a new trial in such terms as will clearly indicate to the court the identity of the particular subjects and rulings complained of. The principal object of the rule is to give the trial court a further opportunity to consider and correct any error he has made while the case is still under his control. State, ex rel., v. Swarts, 9 Ind. 221, 222.

If the challenged ruling relates to the admission of evidence, it is not necessary that the question and answer be set out in full, but the law and its purpose are satisfied if the name of the witness and the subject and substance of the point are stated in such language as will apprise the trial court with reasonable certainty of the character and scope of the particular ruling. Humphries v. Marshall, 12 Ind. 609; Shirk v. Cartright, 29 Ind. 406; Evans v. State, 67 Ind. 68.

As was declared in Ohio, etc., R. Co. v. Stein, 133 Ind. 243, 257, 19 L. R. A. 733, 31 N.E. 180: "It is not the practice and it is not incumbent on a party in a motion for a new trial to set out in detail a verbatim copy of the evidence admitted over objection, or offered and refused, or a verbatim statement of the objections made to its introduction. It is sufficient if the evidence be referred to with such certainty as to call the attention of the court to it and to the ruling in relation thereto, so that the judge could not mistake the matter and the ruling alluded to and complained of by the party filing the motion." This statement was quoted approvingly in Springer v. Byram, 137 Ind. 15, 24, 23 L R. A. 244, 45 Am. St. 159, 36 N.E. 361. The fullest discussion of the rule in question that is found in the reports of this court is in the case of McClain v. Jessup, 76 Ind. 120, 122, where Elliott, J., speaking for the court, said: "The motion must 'name the witness and the part of his testimony which was improperly received or disallowed.' We do not mean to hold that it is necessary to state, in full, the particular evidence received or excluded, but that it is necessary to point out, with reasonable certainty, the particular part of the evidence. This may be done by naming the point or subject upon which the evidence was offered and refused in cases where it is excluded, or by naming the subject or point upon which it was received in cases where error is alleged upon the admission of evidence. This, or other similar modes, will fairly and certainly direct attention to the character of the ruling complained of, and afford both the trial and appellate courts a clear and full view of the questions arising upon the ruling." The following language was used by this court in Crowder v. Reed, 80 Ind. 1, 6: "Where a motion for a new trial points out with reasonable certainty the particular testimony offered and excluded, it is sufficient. It is not necessary, nor indeed proper, that the motion should recite at length the questions propounded, or rehearse the testimony proffered. The object of the motion is to point out with reasonable certainty the ruling complained of, and thus enable the trial court to...