Leverich v. The State

Decision Date09 February 1886
Docket Number12,808
Citation4 N.E. 852,105 Ind. 277
PartiesLeverich v. The State
CourtIndiana Supreme Court

From the Grant Circuit Court.

The judgment is reversed, and the cause remanded for a new trial.

A Steele, R. T. St. John, J. A. Kersey and L. D. Baldwin, for appellant.

F. T Hord, Attorney General, S.W. Cantwell, Prosecuting Attorney and W. B. Hord, for the State.

OPINION

Niblack, C. J.

Upon an indictment for an assault and battery with intent to murder one Sidney Dillman, Stephen Leverich, the appellant, was found guilty of an assault and battery with intent to commit manslaughter, and sentenced to pay a nominal fine and to be imprisoned in the State's prison for the term of two years.

Questions are first made here upon some of the instructions given by the circuit court to the jury. But the instructions complained of are not embraced in a bill of exceptions; they are only copied into the transcript by the clerk as a part of the proceedings at the trial, with an entry on the margin of each in these words: "Given and excepted to by the defendant. Nov. 24th, 1885. Steele & St. John, for def't."

It is objected on behalf of the State, that these instructions are not in the record in such a form as to present any question upon them here. Section 535, R. S. 1881, provides a summary method for reserving an exception to the giving, or the refusal to give, an instruction, without embodying it in a bill of exceptions. But, in the first place, the memorandum of exception therein provided for must be signed by the judge, and not by the attorney of the party excepting, as formerly. In the next place, the section in question has relation only to proceedings in civil causes. By a reference to sections 1845, 1846, 1847, 1848 and 1849, of the last revision of the statutes, it will be observed that all exceptions in criminal causes, not saved by the entry of the clerk as a part of the proceedings in court, must be embraced in a bill of exceptions. There is, consequently, no question before us upon the instructions copied into the transcript as herein above stated.

There was evidence tending to show that the appellant and Dillman the prosecuting witness, were brothers-in-law, and that, notwithstanding some occasional differences, they were generally on what seemed to be friendly terms; that Dillman was a blacksmith; that the appellant was the owner of a buggy and a pair of mules; that on Sunday morning, the 7th day of June, 1885, the appellant hitched his mules to his buggy, and, taking one Doyle into the buggy with him, started to attend a basket meeting somewhere in Grant county; that he stopped on his way at Dillman's blacksmith shop and invited the latter to accompany him to the basket meeting; that Dillman having accepted the invitation, and the appellant seeing in his hand a piece of Babbitt-metal, weighing, perhaps, a pound or more, told him to put the metal in his pocket, as one Davis had threatened to attack him, Dillman, whenever he should see him; that Dillman thereupon put the metal in his pocket and got into the buggy with the appellant and Doyle; that the appellant, being the driver of the team, started thence in the direction of the basket meeting, but afterwards, with the consent of those accompanying him, turned and drove to the town of Marion, where the entire party remained until rather late in the afternoon; that upon their return from Marion a discussion arose between the appellant and Dillman as to whether the former should take the latter back to his home, or drop him at some other point in the neighborhood; that Dillman, becoming suddenly and seemingly angry, jumped out of the buggy, and, taking the...

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