Rhodes v. State, 25722.
| Decision Date | 20 January 1930 |
| Docket Number | No. 25722.,25722. |
| Citation | 202 Ind. 159,171 N.E. 301 |
| Parties | RHODES v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Petition for writ of certiorari to clerk of Gibson Circuit Court commanding him to transmit copy of original bill of exceptions in proceedings between Dryfus Rhodes against the State.
Writ denied.
Shuler McCormick and Padgett & Padgett, all of Vincennes, for appellant.
Jas. M. Ogden, Atty. Gen., and Burke Walker, Dep. Atty. Gen., for the State.
Application is made to this court in the above-entitled cause for a writ of certiorari. In the petition for the writ it is shown that “the original bill of exceptions” in this case contains the longhand transcript of the evidence, the objections, exceptions, and rulings thereon, the irregularities of the proceedings set out and assigned in the motion as grounds for a new trial, all the instructions given by the court on its own motion, and instructions tendered by defendant and refused “as well as the instructions given at the request of the defendant.”
It is further made to appear that appellant's motion for a new trial was overruled. The reasons assigned in the motion are predicated upon remarks, comments, and statements made by the court during the hearing of evidence which petitioner herein has denominated irregularities; exceptions (1) to the giving of certain instructions by the court upon its own motion; (2) the refusal of the court to give certain instructions tendered by defendant; newly discovered evidence; verdict contrary to law; and insufficient evidence to sustain the verdict. Furthermore, that doubt has arisen in the minds of the attorneys for appellant as to whether the questions on “irregularities” of the court and the instructions can be considered by this court as they now appear in the transcript on appeal. “Wherefore, the appellant prays that a writ of certiorari issue from this court to the clerk of the Gibson Circuit Court commanding him to transmit within 60 days a copy of the original bill of exceptions to this court under certificate and seal of the Gibson Circuit Court, and that the record in this case be withdrawn and placed in the hands of the clerk of the Gibson Circuit Court for a sufficient time to enable him to make and deliver said certified copy.”
Rule 34 of the Supreme and Appellate Courts provides that “applications for certiorari *** shall clearly designate the parts of the record asserted to be defective, improperly omitted, or improperly incorporated in the transcript.”
[1][2][3] As we understand the petition herein, the relief asked is not to meet any of the purposes mentioned in the above rule, but for an order requiring the clerk to copy the original bill of exceptions and certify the same to this court. If we are correct in the object intended by the writ, no purpose will be subserved by having it copied, as an original bill may be incorporated in the transcript of the record on appeal as a part thereof, regardless of “whether such original bill or a copy thereof be specified in the præcipe.” Section 2332, Burns' Ann. St. 1926, Acts 1905, pp. 584, 648, c. 169, § 289, as amended, Acts 1915, p. 122, c. 61, § 1. The longhand manuscript of the evidence and matters directly connected therewith, when put in the form of a bill of exceptions and filed in the trial court, as provided in section 691, Burns' Ann. St. 1926, Acts 1897, p. 244, c. 162, § 1, becomes a part of the record of the case in that court, but, by virtue of the above Code...
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