Messersmith v. State, 27359.

• Decision Date: 30 April 1940
• Docket Number: No. 27359.,27359.
• Citation: 26 N.E.2d 908,217 Ind. 132
• Parties: MESSERSMITH v. STATE.
• Court: Indiana Supreme Court

217 Ind. 132

26 N.E.2d 908

MESSERSMITH

v.STATE.

No. 27359.

Supreme Court of Indiana.

April 30, 1940.

Earl Messersmith was convicted of driving an automobile while under the influence of intoxicating liquor and he appeals.

Affirmed.Appeal from Grant Circuit Court; Oliver D. Clawson, Judge.

Harry E. Roberts, of Marion, for appellant.

Omer S. Jackson, Atty. Gen., and Walter O. Lewis, Dpty. Atty. Gen., for appellee.

FANSLER, Judge.

The appellant was convicted of driving an automobile while under the influence of intoxicating liquor.

He has assigned error upon the overruling of his motion for a new trial.

He relies in his brief upon the contention that the evidence is not sufficient to sustain the conviction. In order to present any question concerning the sufficiency of the evidence, the bill of exceptions must contain all of the evidence. Section 9-2105, Burns' Ind.St. 1933, section 2317, Baldwin's Ind.St. 1934; Sunderman v. State, 1926, 197 Ind. 705, 151 N.E. 829;McMurran et al. v. Hannum, 1916, 185 Ind. 326, 113 N.E. 238. The bill of exceptions certified to by the trial judge contains only the testimony of the defendant and of one other witness called by the defendant. It does not purport to contain the testimony of any of the State's witnesses. The judge certifies that the evidence contained in the bill of exceptions ‘was all the evidence given in the above entitled matter and cause on the question of who was in the act of driving the automobile in question at the time alleged in the affidavit herein and during the circumstances of the alleged offense, all as disclosed by an examination of the complete transcript of all the evidence in said cause hereto attached and made a part of this transcript.’ Nowhere does the judge certify to a bill of exceptions containing all of the evidence. What seems to be the testimony of a number of witnesses, certified to by the court reporter, is bound with the transcript filed in this court, but not as a part of the bill of exceptions. The praecipe does not call for a bill of exceptions, and the certificate of the clerk does not mention a bill of exceptions, but certifies only that the transcript contains the papers required by the praecipe. It is clear that there is no proper bill of exceptions brough into the record, and that that which is intended as a bill of exceptions does not contain all of the evidence. The evidence which the trial judge has attempted to certify as being all of the evidence upon the question of guilt or innocence is the defendant's evidence. The witnesses denied that the defendant was intoxicated or that he was driving the automobile in question. The jury must have found something in the evidence more favorable to the State from which they concluded that the defendant was guilty, and the trial judge who signed the certificate must have found some other...