Martin v. The State

• Citation: 47 N.E. 930,148 Ind. 519
• Decision Date: 13 October 1897
• Docket Number: 18,188
• Parties: Martin v. The State
• Court: Supreme Court of Indiana

47 N.E. 930

148 Ind. 519

Martin v. The State

No. 18,188

Supreme Court of Indiana

October 13, 1897

From the Perry Circuit Court.

Reversed.

C. H DeWeese and W. A. Land, for appellant.

W. A Ketcham, Attorney-General, Merrill Moores, S. M. Hilligoss and T. W. Lindsay, for State.

OPINION

Hackney, J.

The appellant seeks a reversal of the judgment of the lower court wherein he was found and adjudged guilty of the crime of larceny. The question urged arises upon the evidence, and the appellee objects to any consideration of the evidence upon the ground that the record does not affirmatively disclose that the bill of exceptions was signed by the trial judge before the same was filed by the clerk. It affirmatively appears from the entries of the court that on the 9th day of February, 1897, the appellant filed, during the term, and within the time allowed, the bill of exceptions copied into the transcript. The bill so copied discloses that it was tendered to and signed by the judge on said 9th day of February, 1897.

From the record entries and the copy of the bill, including the signature of the judge, but one inference is possible, and that it is that the signing preceded the filing.

It has not been held, as in the required preliminary filing of the longhand manuscript of the evidence, to become a part of the record, that the filing of a complete bill, under sections 641, 1916, Burns' R. S. 1894, is not sufficient. While signing is a prerequisite to the filing of a bill, because the instrument does not become a bill until it is signed, when the transcript shows the filing of a completed bill, within the time required, the single inference must be that it was signed and in the condition in which it is shown to have been filed. Otherwise it must be presumed that the clerk has certified that which is untrue.

Upon a careful study of the evidence, we are satisfied that it was not sufficient to support the finding of the court.

Two men, Martin and Thayer, tramping from Cincinnati to Evansville, arrived at Tell City in the evening and visited two clothing stores, in each of which Martin sought a pair of jean trousers, of a kind usually kept in such stores, and in neither of which could they be found at that time. During their visit to the second of said stores, and While Martin was looking at trousers in the back part of the store with his back to Thayer, the latter stole a suit of clothes, which h...