Naanes v. The State

• Decision Date: 10 January 1896
• Docket Number: 17,586
• Citation: 42 N.E. 609,143 Ind. 299
• Parties: Naanes v. The State
• Court: Indiana Supreme Court

42 N.E. 609

143 Ind. 299

Naanes v. The State

No. 17,586

Supreme Court of Indiana

January 10, 1896

From the Marion Criminal Court.

The judgment is reversed, and the cause remanded, with instructions to the trial court to grant appellant a new trial.

W Robertson, for appellant.

W. A Ketcham, Attorney-General, S. H. Spooner and M. Moores, for State.

OPINION

Jordan, J.

Appellant over her plea of not guilty, and a special one pleading insanity, was convicted upon the charge of grand larceny, and her punishment assessed by a jury at a fine of one dollar and imprisonment in the reform school for women and girls for a period of two years. A motion for a new trial was overruled and the court rendered its judgment in accordance with the verdict of the jury.

The errors assigned are: "1st. That the indictment upon which the appellant was convicted, was bad for duplicity.

"2nd. That the court erred in striking out the affidavit of David S. Leach, filed in support of the motion for a new trial.

"3rd. That the court erred in overruling the motion for a new trial."

The first error assigned presents no question for our consideration, as an indictment cannot be assailed for the first time in this court, upon the ground of duplicity. There is no contention that the indictment does not charge a public offense, or one over which the lower court had no jurisdiction. Barnett v. State, 141 Ind. 149, 40 N.E. 666.

The second assignment must also be dismissed without consideration, for the reason that the affidavit of the affiant, which is alleged to have been stricken from the files, has not been incorporated into the record by a bill of exceptions. The only reference to it, which appears in the bill, is the following: "Heretofore inserted in the record. See line one, page 13 1/2, of this transcript." The fact that the affidavit was filed does not alone serve to make it a part of the record, so as to present any question upon an appeal to this court. The requisite mode, and, in fact, the only one, recognized for making affidavits, filed to sustain alleged grounds for a new trial, a part of the record, in a criminal cause, is to embody them in a bill of exceptions. Leverich v. State, 105 Ind. 277, 4 N.E. 852; Meredith v. State, 122 Ind. 514, 24 N.E. 161; Townsend v. State, 132 Ind. 315, 31 N.E. 797.

In Reed v. State, 141 Ind. 116, 40 N.E. 525, in considering the question, we inadvertently used the words "or order of court," from which it might possibly be inferred that this court intended to hold that an order of court in a criminal action would serve the same purpose in bringing affidavits into the record, as does a bill of exceptions. The writer of the opinion in that appeal having in mind at the time the provisions of our civil code, (Section 662, R. S. 1894; section 650, R. S. 1881), which have no application to criminal procedure, but relate exclusively to civil cases, the affidavit in question not being embraced in a bill of exceptions, this court has no legitimate means of knowing its character or contents, or for what purpose it was intended; and, consequently, we must presume in favor of the action of the trial court.

The affidavit of Dr. J. M. Jones, filed to establish the newly discovered evidence relied upon by the appellant, as one of the reasons for a new trial, is not properly embraced in any bill of exceptions; being simply referred to in like manner, as was the one previously considered, and for the same reason is not available to appellant in her appeal to this court.

Counsel next complain of the action of the court in refusing to admit in evidence what purported to be a copy of the register of the Central Indiana Hospital for the Insane, which, as is stated, was offered to show that the mother of appellant had been admitted as a patient into that institution, and also the symptoms of her insanity.

This paper was sworn to by George F. Edenharter, superintendent of the asylum, and it is therein stated by him that the same "is a true copy of the records, as they appear at said institution." By section 3040, R. S. 1894, it is provided that the board of trustees of such institution shall require the superintendent to cause to be kept a hospital register, showing the date of admission of patients, etc. Under section 466, R. S. 1894 (section 462, R. S. 1881), copies of a record, book, or parts thereof, required by law to be kept in any public office in this State, are admissible in evidence, when verified by a proper certificate of the custodian of such records or books, as being true and complete copies of the records, books, or parts thereof, in his custody, to which certificate must be annexed the seal of his office. In the event there is no official seal, then the statute requires the certificate of the clerk of the circuit court or superior court, attested by the seal thereof, to establish that the attestation of the copy of the record has been made by the proper officer. It is manifest that the attempt to authenticate the copy of the hospital record in controversy did not substantially comply with the requirements of the statute, and for that reason, alone, the evidence offered by appellant was not admissible, and the same was rightfully excluded. It was, to say the least, fatally insufficient in not certifying that the copy "is a true and complete one of the record," in his custody, and hence did not satisfy the provisions of the written law. Tull v. David, 27 Ind. 377; Weston v. Lumley, 33 Ind. 486; Board, etc., v. May, 67 Ind. 562; Painter v. Hall, 75 Ind. 208; Board, etc., v. Hammond, 83 Ind. 453.

At the trial the court, over the objections of appellant, permitted the State to introduce in evidence the proceedings of an examination by a commission as to the sanity of the appellant on October 30, 1894 (being but a short time prior to the trial), before Justices Daniels...