Rhodehamel v. State
| Citation | 157 N.E. 49,199 Ind. 520 |
| Decision Date | 10 June 1927 |
| Docket Number | 24,792 |
| Parties | Rhodehamel v. State of Indiana |
| Court | Indiana Supreme Court |
Rehearing Denied November 3, 1927.
1. CRIMINAL LAW.---Grant of time beyond the term for tendering bill of exceptions can only be shown by order-book entry.---The fact that time has been granted beyond the term for presenting a bill of exceptions to the judge for his approval can only be shown by an order-book entry and cannot be shown by a recital in the bill itself. p. 523.
2. CRIMINAL LAW.---Prosecuting attorney cannot extend time for tendering bill of exceptions.---The prosecuting attorney cannot, by agreement, extend the time for tendering bill of exceptions as fixed by the order of the court. p. 524.
3. CRIMINAL LAW.-Bill of exceptions must be tendered within time fixed to present any question on appeal.---In order to present any question on appeal that arose in the trial, the bill of exceptions containing it must be presented to the trial judge within the time fixed for presenting it. p. 524.
4. CRIMINAL LAW.---Date of tendering bill of exceptions, how shown.---The date of presenting a bill of exceptions to the judge must be stated in the bill itself and cannot be shown by an indorsement thereon. p. 524.
5. CRIMINAL LAW.---What controls when conflict between statement in bill of exceptions and order-book entry as to date of presentation to judge.---A statement in a bill of exceptions as to the time of presenting it to the judge for his approval will control when there is a conflict between the statement and an order-book entry as to such time. p. 524.
6. CRIMINAL LAW.---Bill of exceptions tendered in time is effective although not approved nor filed within time granted.---If a bill of exceptions is tendered to the judge for approval within the time granted, it is effective although not approved nor filed until after the expiration of the prescribed time. p. 524.
7. CRIMINAL LAW.---The filing of a bill of exceptions must be done after the bill is signed. p. 525.
8. CRIMINAL LAW.---Filing of bill of exceptions, how shown.---The filing of a bill of exceptions can only be shown by an order-book entry, and cannot be shown by a statement in the bill itself nor by the file mark of the clerk thereon. p 525.
9. CRIMINAL LAW.---When time given for tendering bill of exceptions containing the evidence.---When a bill of exceptions containing the evidence is to be tendered to the judge for approval after the term, time must be given by the court at the time of ruling on the motion for a new trial. p 525.
10. CRIMINAL LAW.---Judge's certificate to bill of exceptions may show that it was presented within time granted.---A certificate of the trial judge at the close of a bill of exceptions that it was presented to him for approval within the time allowed therefor sufficiently shows that fact, and will control when an order-book entry shows that it was not presented until after the expiration of such time. p. 525.
11. INTOXICATING LIQUORS.---Evidence held sufficient to sustain conviction for transporting intoxicating liquor although denied by the defendant and his companion at the time of the alleged transportation. p. 525.
12. INTOXICATING LIQUORS.---State did not need to negative exception in act of 1923 prohibiting transportation of intoxicating liquor in a vehicle.---In a prosecution for transporting intoxicating liquor in a vehicle in violation of Acts 1923 p. 108, it was not necessary to allege or prove that the defendant did not come within the exception in the priviso to the first section of the statute to the effect that it was not applicable to the transportation of intoxicating liquor for lawful purposes. p. 527.
From Grant Circuit Court; J. F. Charles, Judge.
Clayton E. Rhodehamel was convicted of unlawfully transporting intoxicating liquor in an automobile, and he appeals.
Affirmed.
John A. Kersey, for appellant.
Arthur L. Gilliom, Attorney-General, Edward J. Lennon, Jr., Deputy Attorney-General, Arnet B. Cronk and Carl J. Wilde, for the State.
The appellant was charged by affidavit with having unlawfully and feloniously transported four pints and four half-pints of intoxicating liquor in an automobile. A trial by the court resulted in a finding of guilty, upon which judgment was rendered, and from such judgment this appeal is taken.
The only error properly assigned is that the court erred in overruling the motion for a new trial. The only specifications of error in the motion for a new trial are: (1) The finding of the court is not sustained by sufficient evidence; (2) the finding of the court is contrary to law. The only question raised in appellant's brief goes to the sufficiency of the evidence to sustain the finding of the court; and appellee claims that this question cannot be considered because, as it alleges, the evidence has not been brought into the record by a proper bill of exceptions. That the record shows that the bill of exceptions containing the evidence was filed after the term and after the time fixed by the court for such filing, and that said bill of exceptions was not tendered for filing within the time fixed by the court. An examination of the record refutes appellee's contention.
By an order-book entry in the record, it appears that the motion for a new trial was overruled and exceptions taken and thirty days in which to file all bills of exceptions given, and ninety days granted to perfect the appeal on June 30, 1924, and it also appears from an order-book entry in the record that the bill of exceptions was filed as a paper in the case after the same had been signed by the judge. At the close of the bill of exceptions and in the body thereof appears the following certificate signed "J. F. Charles, Judge Grant Circuit Court":
And now within the time allowed by said court, to wit: the 29th day of July, 1924, the defendant, Clayton E. Rhodehamel, now tenders this, his bill of exceptions, embracing all of the evidence given and heard on the trial of the above entitled cause, together with all offers to introduce testimony, all objections to the introduction of testimony, all rulings of the court thereon, all motions to strike out and all other motions concerning the admission and exclusion of evidence, all rulings of the court thereon and all objections and exceptions to the rulings of the court, and the undersigned, judge thereof and the court, having seen and inspected said bill of exceptions, and having found the same to be true and correct, does settle the same, and sign and seal the same and does now order said bill of exceptions filed and made a part of the record in this cause; all of which is now finally found and accordingly done, this 29th day of July, 1924."
Section 2330 Burns 1926, provides that all bills of exception must be presented within the time allowed for the approval and signature of the judge, after which they shall be filed with the clerk. 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. Calvert v. State (1883), 91 Ind. 473; Bass v. State (1918), 188 Ind. 21, 120 N.E. 657; Gray v. McLaughlin (1921), 191 Ind. 190, 131 N.E. 518; Flanagan v. State (1922), 192 Ind. 662, 137 N.E. 179.
The prosecuting attorney cannot by agreement extend the time for tendering bills of exception as fixed by the order of the court. Bartley v. State (1887), 111 Ind. 358, 12 N.E. 503.
In order to present any question on appeal that arose in the trial, the bill of exceptions must be presented to the trial judge within the time fixed for presenting it. Joseph v. Mather (1887), 110 Ind. 114, 10 N.E. 78; Cornell v. Hallett (1895), 140 Ind. 634, 40 N.E. 132; Indiana, etc., Oil Co. v. O'Brien (1903), 160 Ind. 266, 65 N.E. 918.
The date of presenting the bill to the judge must be stated in the body of the bill and not by an indorsement thereon. Hormann v. Hartmetz (1891), 128 Ind. 353, 27 N.E. 731; Ayres v. Armstrong (1895), 142 Ind. 263, 41 N.E. 522.
A statement in the bill as to the date of presenting it to the judge will control when there is a conflict between the statement and the order-book entry as to such time. Robinson v. State (1899), 152 Ind. 304, 53 N.E. 223; Merrill v. State (1901), 156 Ind. 99, 59 N.E. 322.
If the bill is presented to the judge...
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