Klepfer v. State

• Citation: 23 N.E. 287,121 Ind. 491
• Decision Date: 15 January 1890
• Docket Number: 15,022
• Parties: Klepfer v. The State
• Court: Supreme Court of Indiana

23 N.E. 287

121 Ind. 491

Klepfer v. The State

No. 15,022

Supreme Court of Indiana

January 15, 1890

From the Marion Circuit Court.

Judgment affirmed, with costs.

B. F Davis, W. A. Martz and B. F. Watts, for appellant.

L. T Michener, Attorney General, and J. H. Gillett, for the State.

OPINION

Berkshire, J.

This was a prosecution under section 5320, R. S. 1881. The charge in the indictment is that, on the 12th day of February, 1889 in the county of Marion, and State of Indiana, the defendant did unlawfully sell to one Charles Cory intoxicating liquor in a quantity greater than a gill and less than a quart, for the price of ten cents, not being licensed so to do.

There was a jury trial, the defendant was found guilty, and a fine of $ 100 assessed, and over a motion for a new trial judgment was rendered in accordance with the verdict.

The only error assigned to which our attention has been called in the brief of the appellant relates to the ruling of the court overruling the motion for a new trial.

The motion contains several reasons; those from one to five, inclusive, refer to the court's rulings overruling certain objections to certain questions propounded by the prosecuting attorney to two of the witnesses; the sixth reason is that the court erred in refusing to strike out the testimony given by a witness called by the State.

The seventh reason refers to the instructions given by the court to the jury; the eighth to alleged misconduct of the prosecuting attorney in his closing argument to the jury.

The ninth reason is that the verdict is contrary to law; the tenth and eleventh are substantially the same--that the verdict is not sustained by sufficient evidence.

We are inclined very strongly to the opinion that the several questions which counsel for the appellant desired to present for our consideration in the first six reasons stated, owing to the condition of the record, are not properly before us.

The reasons as stated do not contain the questions propounded to the witnesses, but a printed statement is referred to as accompanying the motion, wherein, the motion informs us, the questions to which objections were made will be found.

We find a statement of the character indicated in the bill of exceptions filed some days after, and we also find a note of the clerk following the motion for a new trial, referring to the bill of exceptions for the said printed statement. The statement which is found in the bill of exceptions may, or may not, be the one referred to in the motion. The memorandum made by the clerk can not be regarded, for the reason that the clerk is not authorized to make such memorandums with a view to the identification of papers which have to be transcribed into the transcript.

If there was such a printed statement filed with the motion as is therein referred to, it should have been set out in the transcript immediately following the motion as the accompanying paper. But, waiving all infirmities in the transcript, and conceding that the printed statement is sufficiently identified as a part of the motion for a new trial, it will avail the appellant not...