Moore v. State, No. 25029.

Docket NºNo. 25029.
Citation198 Ind. 547, 154 N.E. 388
Case DateDecember 14, 1926
CourtSupreme Court of Indiana

198 Ind. 547
154 N.E. 388

MOORE
v.
STATE.

No. 25029.

Supreme Court of Indiana.

Dec. 14, 1926.


Appeal from Gibson Circuit Court; Claude A. Smith, Judge.

On petition for rehearing. Petition overruled.


[154 N.E. 389]

For former opinion, see 153 N. E. 402.

Hovey C. Kirk, of Princeton, for appellant.

Arthur L. Gilliom, Atty. Gen., and Edward J. Lennon, Jr., Deputy Atty. Gen., for the State.


EWBANK, J.

In his original brief, counsel for appellant complained of an alleged error in giving instruction No. 19, as copied in that brief from the original transcript. But the return to a writ of certiorari disclosed that the instruction which the court really gave told the jury that, if Sam Beach and Joe Beach were found to have been guilty of the felony charged, “and if you further find from the evidence beyond a reasonable doubt that the defendant, Cleve Moore, did, before the committing of said felony, *** unlawfully and feloniously counsel, encourage, hire, or command the said Sam Beach and the said Joe Beach to do and commit said felony, then you are instructed that you should find the defendant, Cleve Moore, guilty,” etc., and that, in a proceeding to correct the record below, the trial court found the words above italicized to have been part of the instruction given, but to have been omitted from the instruction as set out in the bill of exceptions obtained by appellant and copied into appellant's brief, and that the bill of exceptions was thereupon corrected accordingly by a proper decree. After the return to the writ of certiorari had been made, appellee filed a brief in which was set out the fact that the bill of exceptions had been so corrected, and that the instruction complained of really was not erroneous in the particulars complained of. The return to the writ also showed that counsel who represent appellant in this court appeared for him in the trial court, resisted the application to correct the record, and on his behalf reserved exceptions to the filing of the application to correct it, and also to the ruling of the court sustaining the motion and ordering that the record be corrected.

[1][2] Under these circumstances, counsel was bound to know that the transcript as amended by certiorari “imports absolute verity,” and must be accepted as true by the Supreme Court in deciding the appeal. Ewbank's Manual (2d Ed.) §§ 208, 210, 211. And, in filing this petition for rehearing, it was his duty to familiarize himself with the corrected transcript, and...

To continue reading

Request your trial
17 practice notes
  • Tait v. State, No. 30164
    • United States
    • Indiana Supreme Court of Indiana
    • March 13, 1963
    ...Even if this were an inaccurate statement, the judgment will not be reversed therefor. Moore v. State (1926), 198 Ind. 547, 153 N.E. 402, 154 N.E. 388. As was said in Anderson v. State (1933), 205 Ind. 607, 622, 186 N.E. 316, 'Instructions are to be considered with reference to each other, ......
  • Grand Trunk Western Ry. Co. v. Cather, No. 13123.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 26, 1929
    ...be reversed merely because it is obnoxious to verbal criticism.” To the same effect see Moore v. State, 198 Ind. 547, 553, 153 N. E. 402, 154 N. E. 388, and authorities there cited. In view of the well-settled rule that the instructions given should be considered as a whole, we call attenti......
  • Ross v. State, No. 25880.
    • United States
    • Indiana Supreme Court of Indiana
    • October 26, 1932
    ...196 Ind. 77, 80, 147 N. E. 136;Eisenshank v. State (1926) 197 Ind. 463, 150 N. E. 365;Moore v. State (1926) 198 Ind. 547, 153 N. E. 402, 154 N. E. 388. [9] It is not necessary to decide whether it was error for the trial court to permit the state to ask the questions above referred to, [182......
  • Wolfe v. State , No. 25149.
    • United States
    • Indiana Supreme Court of Indiana
    • January 12, 1928
    ...shot, an instruction [159 N.E. 549]on circumstantial evidence was properly refused. In Moore v. State (1926) 198 Ind. 547, 153 N. E. 402, 154 N. E. 388, this court decided that the refusal to give instructions as to the degree of proof required to convict on circumstantial evidence was not ......
  • Request a trial to view additional results
17 cases
  • Tait v. State, No. 30164
    • United States
    • Indiana Supreme Court of Indiana
    • March 13, 1963
    ...Even if this were an inaccurate statement, the judgment will not be reversed therefor. Moore v. State (1926), 198 Ind. 547, 153 N.E. 402, 154 N.E. 388. As was said in Anderson v. State (1933), 205 Ind. 607, 622, 186 N.E. 316, 'Instructions are to be considered with reference to each other, ......
  • Grand Trunk Western Ry. Co. v. Cather, No. 13123.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 26, 1929
    ...be reversed merely because it is obnoxious to verbal criticism.” To the same effect see Moore v. State, 198 Ind. 547, 553, 153 N. E. 402, 154 N. E. 388, and authorities there cited. In view of the well-settled rule that the instructions given should be considered as a whole, we call attenti......
  • Ross v. State, No. 25880.
    • United States
    • Indiana Supreme Court of Indiana
    • October 26, 1932
    ...196 Ind. 77, 80, 147 N. E. 136;Eisenshank v. State (1926) 197 Ind. 463, 150 N. E. 365;Moore v. State (1926) 198 Ind. 547, 153 N. E. 402, 154 N. E. 388. [9] It is not necessary to decide whether it was error for the trial court to permit the state to ask the questions above referred to, [182......
  • Wolfe v. State , No. 25149.
    • United States
    • Indiana Supreme Court of Indiana
    • January 12, 1928
    ...shot, an instruction [159 N.E. 549]on circumstantial evidence was properly refused. In Moore v. State (1926) 198 Ind. 547, 153 N. E. 402, 154 N. E. 388, this court decided that the refusal to give instructions as to the degree of proof required to convict on circumstantial evidence was not ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT