Rhodehamel v. State, No. 24792.

• Docket Nº: No. 24792.
• Citation: 157 N.E. 49, 199 Ind. 520
• Case Date: June 10, 1927
• Court: Supreme Court of Indiana

199 Ind. 520
157 N.E. 49

RHODEHAMEL
v.
STATE.

No. 24792.

Supreme Court of Indiana.

June 10, 1927.

Appeal 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, of Marion, for appellant.

Arthur L. Gilliom, Atty. Gen., and Arnet B. Cronk and Carl J. Wilde, both of Indianapolis, for the State.

WILLOUGHBY, J.

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

[157 N.E. 50]

cannot be considered because, as he 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 30 days in which to file all bills of exceptions given, and 90 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 of 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.”

[1] 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, 91 Ind. 473;Bass v. State, 188 Ind. 21, 120 N. E. 657;Gray v. McLaughlin, 191 Ind. 190, 131 N. E. 518;Flanagan v. State, 192 Ind. 662, 137 N. E. 179.

[2] 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, 111 Ind. 358, 12 N. E. 503.

[3] 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, 110 Ind. 114, 10 N. E. 78;Cornell v. Hallett, 140 Ind. 634, 40 N. E. 132;...