Pierson v. State

• Decision Date: 09 June 1921
• Docket Number: No. 23768.,23768.
• Citation: 191 Ind. 206,131 N.E. 397
• Parties: PIERSON v. STATE.
• Court: Indiana Supreme Court

191 Ind. 206

131 N.E. 397

PIERSON

v.STATE.

No. 23768.^*

Supreme Court of Indiana.

June 9, 1921.

Appeal from Circuit Court, Jay County; Frank W. Gordon, Special Judge.

Enoch L. Pierson was convicted of conspiracy to commit a felony, and he appeals. Affirmed.

Jno. M. Smith and S. A. D. Whipple, both of Portland, for appellant.

U. S. Lesh, Atty. Gen., and Remster Bingham, of Indianapolis, for appellee.

EWBANK, J.

The appellant, jointly with three other persons, was charged by affidavit with conspiring to commit a felony. Upon a separate trial he was found guilty, and from a judgment of conviction he appealed, and has assigned as error the overruling of his motion for a new trial, and of his motion in arrest of judgment. This is his second appeal. Pierson v. State, 188 Ind. 239, 123 N. E. 118.

[1][2] The reasons specified in the motion for a new trial relate to the alleged insufficiency of the evidence to prove certain elements of the crime charged, the admission of certain evidence, the giving of certain instructions, and the refusal to give certain others, and the alleged fact that the prosecuting attorney pointed his finger at appellant and made certain statements in arguing the case to the jury. The instructions given were not so bad that they would necessarily be prejudicial to appellant under all and any evidence admissible under the issues; the court was not bound to give any instructions requested unless they were applicable to the evidence; the argument by counsel is only complained of as being erroneous because of the alleged fact that appellant did not testify; and only by an examination of the evidence could the court learn whether or not it sustains the verdict. A decision of each and all the questions sought to be presented by the motion for a new trial depends upon the evidence.

[3] An examination of the transcript discloses that it recites the overruling of the motion for a new trial and the rendition of judgment to have occurred in January, 1920, at the December term of court, and does not contain any order of court granting time beyond that term to file a bill of exceptions; that it states that the bill of exceptions was presented for the judge's signature and was signed on March 26, 1920, and further recites that the bill of exceptions was filed “on the 26th day of March, 1920, the same being a day in the March term of said court.” The March term of the Jay circuit court began on the first Monday of March. Burns' 1914, § 1461 (Acts 1901, c. 157, pp. 343, 344). Appellant not having obtained leave of court to file the bill of exceptions purporting to contain the evidence after the close of the December term, it is not part of the record, and the evidence is not before the court for consideration, and none of the specifications in the motion for a new trial are shown by the record to be well taken. Burns' 1914, § 2163; State v. Jones, 37 Ind. 179;Calvert v. State, 91...