Hunter v. The State
| Decision Date | 25 May 1885 |
| Docket Number | 12,246 |
| Citation | 1 N.E. 361,102 Ind. 428 |
| Parties | Hunter v. The State |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Sept. 16, 1885.
From the Warren Circuit Court.
The judgment is affirmed, with costs.
J McCabe and E. F. McCabe, for appellant.
F. T Hord, Attorney General, W. B. Hord and J. G. Pearson, for the State.
Upon an affidavit charging appellant with having sold intoxicating liquors on Sunday, in violation of section 2098, R. S. 1881 he was convicted before a justice of the peace, and again on appeal to the circuit court. Over a motion for a new trial in the latter court, he was sentenced to pay a fine and costs.
The first question made here by his counsel is that the motion for a new trial should have been granted, because of the insufficiency and lack of evidence. This is met by the attorney general with the contention that the evidence is not before us, because there is no bill of exceptions embodying it properly in the record. This contention is supported by the record.
The motion for a new trial was overruled, and final judgment rendered on the 13th day of January, 1885. No bill of exceptions was filed at that time, nor was time asked or granted within which to file a bill. On the 23d day of the same month replevin bail was entered, and sixty days granted by the court within which to file a bill of exceptions. A bill, filed within that time, is copied into the transcript by the clerk, but it is clearly not a part of the record, and can not be so regarded. The trial ended with the overruling of the motion for a new trial and the final judgment on the 13th, after which time the court had no authority to grant or fix any time for the filing of a bill of exceptions. In criminal prosecutions bills of exceptions must be filed at the time of the trial, or within such time as the court may then allow. R. S. 1881, section 1847; Hunter v. State, 101 Ind. 406.
The evidence is not in the record, and hence none of the questions dependent upon it can be considered.
Two questions are made as to the sufficiency of the affidavit upon which appellant was tried. The first is that there is no sufficient statement therein of the amount paid for the liquor. In the transcript from the justice's court, a copy of the affidavit is set out, and in this it is stated that the liquor was sold to one Miner "at and for the price of seventy-five."
The statute requires (R. S. 1881, section 1645), that on such appeals, the justice shall send up the original papers. This seems to have been done in this case. In the record here the clerk has set out the affidavit in...
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