Phillips v. State

• Decision Date: 10 October 1930
• Docket Number: No. 25876.,25876.
• Citation: 202 Ind. 181,172 N.E. 904
• Parties: PHILLIPS v. STATE.
• Court: Indiana Supreme Court

202 Ind. 181

172 N.E. 904

PHILLIPS

v.STATE.

No. 25876.

Supreme Court of Indiana.

Oct. 10, 1930.

Appeal from Criminal Court, Marion County; Thos. E. Garvin, Special Judge.

Tony Phillips was convicted for burglary in the second degree and for grand larceny, and he appeals.

Affirmed.

See, also, 171 N. E. 380.

Thomas C. Whallon, of Indianapolis, for appellant.

James M. Ogden, Atty. Gen., and Merl M. Wall, Deputy Atty. Gen., for the State.

WILLOUGHBY, C. J.

The appellant and another were prosecuted by indictment in two counts, one for burglary in the second degree and the other for grand larceny. This appellant was tried separately, and the jury brought in a verdict of guilty on each count. Judgments were rendered on such verdicts and the defendant appeals. The only assignment of error is that the court erred in overruling appellant's motion for a new trial.

The record shows that appellant's motion for a new trial was filed on the 5th day of July, 1929, and was overruled on the 27th day of July, 1929, during the July term, 1929, of the Marion criminal court, and at that time the defendant excepted to the ruling of the court.

In his motion for a new trial, the appellant alleges as reasons for a new trial: Irregularity in the proceedings of the court which prevented the defendant from having a fair trial; error of the court in overruling defendant's motion to set aside submission of the cause and discharge the jury; misconduct on the part of a juror named August C. Bohlen. The particulars of the alleged misconduct of said juror are set out in an affidavit of Thomas C. Whallon, filed in support of said motion for a new trial. The motion also alleges that the verdict of the jury is contrary to law and is not sustained by sufficient evidence.

The record further shows that afterward, on the 30th day of January, 1930, the following further proceedings were had, to wit: “Comes now the defendant by his counsel and tenders to the court his bill of exceptions containing the evidence in this cause, which is signed by the court, ordered filed and is now filed and made a part of the record in this cause.”

[1] The record does not show that time was given for presenting a bill of exceptions, and, since this bill was not presented until January 18, 1930, which was in the January term of said court, it is not in the record.

[2][3] A bill of exceptions cannot be brought into the record at a term of court subsequent to the term at which the trial was held, except upon permission therefor given by the court at or before the time of its ruling upon the motion for a new trial. The fact that time is granted beyond the term for presenting the bill of exceptions to the judge for his approval can only be shown by an entry in the order book. A recital in the bill itself that time was granted is not sufficient. Rhodehamel v. State, 199 Ind. 520, 157 N. E. 49;Barker v. State, 188 Ind. 493, 124 N. E. 681.

Section 2330, Burns' 1926, provides that the party objecting to a decision must except thereto at the time the decision is made, but he may reduce such exceptions to writing at any time during the term, or by leave of the court within such time thereafter as the court may allow. All bills of exceptions must be presented, within the time allowed, for the signature and approval of the judge, after which they shall be filed with the clerk.

When the record...