Hill v. State

• Decision Date: 08 January 1908
• Docket Number: No. 21,075.,21,075.
• Citation: 83 N.E. 243,169 Ind. 561
• Parties: HILL v. STATE.
• Court: Indiana Supreme Court

169 Ind. 561

83 N.E. 243

HILL

v.STATE.

No. 21,075.

Supreme Court of Indiana.

Jan. 8, 1908.

Appeal from Circuit Court, Fulton County; Harry Bernetha, Judge.

Otho Hill was convicted of an offense, and he appeals. Affirmed.

Rowley & Mattice and Nelson G. Hunter, for appellant. James Bingham, A. G. Alexander, G. Cavins, Edward M. White, and Henry M. Dowling, for the State.

MONTGOMERY, J.

Appellant was convicted upon a charge of rape, and assigns the overruling of his motion for a new trial as error. The ground of the motion relied upon as reversible error is misconduct of the assistant prosecuting attorney in the closing argument to the jury. In making the closing argument the assistant prosecutor was purporting to give the testimony of appellant, but in doing so misquoted him upon a material matter. Appellant's counsel objected, without stating any specific ground, and the court overruled their objection. It is admitted that the attorney did not repeat or continue the objectionable argument. A new trial was asked, “for the misconduct of George W. Holman, the assistant prosecuting attorney, in the closing argument to the jury, over the objections of defendant,” in making a statement particularly set out. The Attorney General insists that no question is presented for the reason that the motion for a new trial is not founded upon, and does not charge, any erroneous ruling of the court with respect to the alleged misconduct, but assigns the misconduct itself as grounds for a new trial. Misconduct of the prevailing party is not cause for a new trial in a criminal case; but a new trial is authorized for “error of law occurring at the trial.” The term “error of law” necessarily involves an erroneous ruling of the trial court. The alleged misconduct of an attorney in argument, with or without objection from opposing counsel, will not justify the granting of a new trial in such a case as this. New trials cannot be had as a matter of right, but only upon the terms and grounds prescribed by the Legislature. It is apparent that the misstatement of counsel for the state was uttered before appellant's objection thereto was heard; and, although it is claimed such objection was overruled, the ruling may have been so made for the reason that the objection came too late, or was too general, since no specific ground of objection was stated at the time. It is conceded that the attorney did not continue or repeat the objectionable language; and if the...