Madden v. The State

Decision Date25 May 1897
Docket Number18,178
Citation47 N.E. 220,148 Ind. 183
PartiesMadden v. The State
CourtIndiana Supreme Court

Rehearing Denied June 9, 1897.

From the St. Joseph Circuit Court.


J. W Talbot and J. E. Talbot, for appellant.

W. A Ketcham, Attorney-General, and Thomas W. Slick, for State.

McCabe, C. J. Howard, J., took no part in the decision of this cause.


McCabe, C. J.

The appellant was convicted of grand larceny on an indictment charging him with grand larceny, burglary, and receiving stolen goods, the jury fixing his punishment at $ 5.00 fine and three years in the penitentiary.

The trial court overruled his motion for a new trial, which ruling is called in question by his assignment of errors. The motion, among other things, assigned as reasons therefor that the court, over appellant's objection, permitted the State to prove that some months prior appellant had been arrested in St. Joseph county on another charge of grand larceny, and the court, after a proper request from appellant that all instructions be in writing, over appellant's objection, gave an oral instruction.

We are met on behalf of the State by an objection to the consideration of these questions, because it is insisted that the evidence and the matters involved in this exception are not in the record. It is claimed that there is nothing to show that the longhand manuscript was filed in the clerk's office before its incorporation in the bill of exceptions, or that it was ever filed in the clerk's office. That is true, but there is nothing to show that the original longhand manuscript was ever incorporated in the bill of exceptions, but the transcript purports to contain a transcript of the bill of exceptions including a copy of the longhand manuscript, if it ever was incorporated in the bill of exceptions.

Where the transcript does not purport to contain the original longhand manuscript, but where the bill, as here, states that it contains all the evidence given in the cause, there is no reason why such transcript should show that the longhand manuscript of the evidence and its incidents was ever filed in the clerk's office.

It is sufficient if the judge certifies as he has here that the bill of exceptions contains all the evidence given in the cause, and the clerk certifies as he has here "that the above and foregoing transcript contains complete copies of all the papers and entries in said cause," the transcript otherwise showing the filing of the bill of exceptions in said cause.

The bill of exceptions shows that at the beginning of the trial the defendant filed a written paper reading thus: "The defendant requests the court to reduce his charge and instructions in this cause to writing, and to give no instructions unless the same have been reduced to writing," signed by his counsel.

And the bill of exceptions further shows that after the evidence in the case had been closed and the opening argument had been made by the deputy prosecuting attorney on behalf of the State, the court gave orally to the jury, of its own motion, an instruction in the words and figures following, to-wit: "Gentlemen of the jury, while the defendant himself was on the witness stand, a motion was made by the defendant's counsel to strike out certain testimony referring to the defendant's former arrest in this county, and the sheriff and chief of police were called in rebuttal for the State. I have come to the conclusion that that ought not to have gone to the jury. Therefore, I instruct you that whatever testimony refers to the former arrest be disregarded by you."

The giving of this instruction orally and without being reduced to writing was at the proper time objected to by appellant's counsel, which objection was overruled by the court, to which ruling appellant at the time excepted. The giving of the instruction orally and without being reduced to writing, under the circumstances, it is claimed by appellant, was a violation of the statute rendering the granting of a new trial imperative on the court. Section 1892, Burns' R. S. 1894 (1823, R. S. 1881), sub-section 5.

That such a direction is but a method of striking out the evidence mentioned therein, and is not an instruction within the meaning of the statute is well settled by the decisions of this court. Stanley v. Sutherland, 54 Ind. 339; McCallister v. Mount, 73 Ind. 559; Lawler v. McPheeters, 73 Ind. 577; Trentman v. Wiley, 85 Ind. 33; Bradway v. Waddell, 95 Ind. 170; Lehman v. Hawks, 121 Ind. 541, 23 N.E. 670.

It is insisted by the appellant that the court erred in admitting the evidence referred to in said instruction for which the motion for a new trial ought to have been sustained. But it is contended on behalf of the State that the error was cured by the court afterwards in excluding it entirely from the consideration of the jury. That is well settled law in this State, especially where the complaining party fails to show affirmatively that notwithstanding such withdrawal of such inadmissible evidence that it harmed him. There is no such showing in this case. Shepard v. Goben, 142 Ind. 318, 39 N.E. 506; Zehner v. Kepler, 16 Ind. 290; Adams v. Dale, 38 Ind. 105; Indianapolis, etc., R. W. Co. v. Bush, 101 Ind. 582; Wishmier v. Behymer, 30 Ind. 102; Gebhart v. Burkett, 57 Ind. 378; Moore v. Shields, 121 Ind. 267, 23 N.E. 89; Blizzard v. Applegate, 77 Ind. 516; Evansville,...

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