Mcpherson v. State, 22,158

• Citation: 99 N.E. 984, 178 Ind. 583
• Case Date: November 26, 1912
• Court: Supreme Court of Indiana

99 N.E. 984

178 Ind. 583

McPherson
v.
State of Indiana

No. 22,158

Supreme Court of Indiana

November 26, 1912

From Criminal Court of Marion County (39,523); Joseph T. Markey, Judge.

Prosecution by the State of Indiana against Arthur Mc Pherson. From a judgment of conviction, the defendant appeals.

Affirmed.

W. E. Henderson, for appellant.

Thomas M. Honan, Attorney-General, Thomas H. Branaman, Edwin Corr and James E. McCullough, for the State.

OPINION [99 N.E. 985]

[178 Ind. 584] Monks, C. J.

Appellant was tried and convicted of the offense of murder in the first degree, and his punishment assessed by the jury at imprisonment in the state prison during his life. Over a motion for a new trial, judgment was rendered on the verdict.

It is insisted by appellant in his brief that the court [178 Ind. 585] erred in overruling his motion for a new trial, for the following reasons: (1) "He was brought into court handcuffed, and remained handcuffed during the trial of the case." (2) On account of certain alleged misconduct of the prosecuting attorney in his argument to the jury.

It is contended by the Attorney-General "that as there is no bill of exceptions establishing the truth of either of these alleged errors, no question is presented." Citing Heath v. State (1910), 173 Ind. 296, 300, 90 N.E. 310.

There is nothing in the record showing that appellant was in any way restrained by manacles or shackles during the trial, or any part thereof. Such matters can be brought into the record only by a bill of exceptions. Heath v. State, supra; State v. Smith (1893), 114 Mo. 406, 423, 21 S.W. 827. It has been held, however, that whether it is necessary for a prisoner to be restrained by shackles or manacles during the trial must be left to the sound discretion of the trial judge. Faire v. State (1877), 58 Ala. 74, 80, 83, and authorities cited; Territory of New Mexico v. Kelly (1882), 2 N.M. 292, 302, 306. See, also, Lee v. State (1875), 51 Miss. 566; Poe v. State (1882), 10 Lea (Tenn.) 673; Matthews v. State (1882), 9 Lea (Tenn.) 128, 42 Am. Rep. 667; State v. Williams (1897), 18 Wash. 47, 50 P. 580, 63 Am. St. 869, 39 L. R. A. 821 and note; People v. Harrington (1871), 42 Cal. 165, 10 Am. Rep. 296; State v. Lewis (1877), 19 Kan. 260, 27 Am. Rep. 113 and note p. 116; State v. Kring (1877), 64 Mo. 591; State v. Kring (1876), 1 Mo.App. 438; Hauser v. People (1904), 210 Ill. 253, 265, 267, 71 N.E. 416; Upstone v. People (1883), 109 Ill. 169; State v. Smith (1883), 11 Ore. 205, 8 P. 343; Rainey v. State (1886), 20 Tex. Ct. App. 455, 472; State v. Allen (1898), 45 W.Va. 65, 30 S.E. 209; 13 Central L. J. 426; 2 Bishop, New Crim. Proc. § 955; Wharton, Crim. Pl. and Pr. (9th ed.) §§ 540, 540a; 12 Cyc. 529.

[178 Ind. 586] The alleged misconduct of the prosecuting attorney can be brought into the record only by a bill of exceptions. Heath v. State, supra, and cases cited.

An original bill of exceptions containing the evidence is embraced in the record under § 657 Burns 1908, Acts 1897 p. 244, but no matter contained therein, except the evidence and questions concerning the competency of witnesses and the admissibility of the evidence, can be considered, because said section does not authorize anything else made a part of the record on appeal by such original bill of exceptions. Curless v. State (1909), 172 Ind. 257, 262, 265, 269, 87 N.E. 129, 88 N.E. 339, and cases cited; Williams v. State (1908), 170 Ind. 644, 647, 648, 85 N.E. 349, and cases cited; Marshall v. Matson (1908), 171 Ind. 238, 241, 86 N.E. 339, and cases cited; Sharp v. State (1903), 161 Ind. 288, 289, 68 N.E. 286; Walters v. State (1910), 174 Ind. 545, 550, 551, 92 N.E. 537; Carlson v. State (1896), 145 Ind. 650, 44 N.E. 660; City of Michigan City v. Phillips (1904), 163 Ind. 449, 453, 71 N.E. 205.

It follows that no question concerning the alleged misconduct of the prosecuting attorney is presented by the record. Moreover, it is not claimed in appellant's brief nor shown by the record that any motion was made by him to set aside the submission and discharge the jury, nor for the court to instruct the jury to...