Rhodehamel v. State
| Citation | 157 N.E. 49,199 Ind. 520 |
| Decision Date | 10 June 1927 |
| Docket Number | No. 24792.,24792. |
| Parties | RHODEHAMEL v. STATE. |
| Court | Supreme Court of Indiana |
OPINION TEXT STARTS HERE
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.
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 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;Ind. Oil Co. v. O'Brien, 160 Ind. 266, 65 N. E. 918, 66 N. E. 742.
[4] 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, 128 Ind. 353, 27 N. E. 731;Ayres v. Armstrong, 142 Ind. 263, 41 N. E. 522.
[5] 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, 152 Ind. 304, 53 N. E. 223;Merrill v. State, 156 Ind. 99, 59 N. E. 322.
[6] If the bill is presented to the judge within the time granted, it is effective, although not finally approved nor filed until after the expiration of the prescribed time. Flatter v. State, 182 Ind. 514, 107 N. E. 9.
[7][8] The filing of a bill must be done after the bill is signed. Drake v. State, 145 Ind. 210, 41 N. E. 799, 44 N. E. 188. And the filing of the bill must be shown by an order book entry. Barker v. State, 188 Ind. 493, 124 N. E. 681. It cannot be shown by a statement in the bill itself, nor by the file marks of the clerk thereon. Patterson v. Dodson, 190 Ind. 362, 130 N. E. 402.
[9] When a bill of exceptions containing the evidence is to be filed after the term, leave therefor must be given by the court at the time of the ruling on the motion for a new trial. Bass v. State, supra; Taylor v. State, 191 Ind. 200, 132 N. E. 294.
[10] In Robinson v. State, supra, it is held that the certificate of the judge that the bill of exceptions was presented to him on a certain date for signature will control a journal entry recited in the record that the bill was presented on a later date. Where the bill of exceptions was presented to the court within the time allowed, it is properly in the record, although it was not finally approved nor filed until after the prescribed time. The bill of exceptions is properly in the record.
[11] The evidence most favorable to the state shows that on or about June 7, 1924, the county officers were advised as to the location of some intoxicating liquor concealed in the weeds in or near a public highway, in the city of Marion, Grant county, Ind. Four officers went to the place where this liquor was said to be concealed, about 11 o'clock in the morning, and found several pints and half pint bottles containing alcohol in two piles in...
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De Long v. State
... ... The affidavit charged the offense in the language of the statute, and charged that the transportation was unlawful, and it was not necessary to anticipate nor negative the exception contained in the subsequent clause. Volderauer v. State (1924) 195 Ind. 415, 143 N. E. 674;Rhodehamel v. State (1927) 199 Ind. 520, 157 N. E. 49;Richardson v. State (1928) 200 Ind. , 164 N. E. 269.[13] The appellant filed in the lower court a verified motion, entitled a Plea in Abatement, which alleged that the indictment was found solely upon evidence obtained by an illegal search, that neither of ... ...