Robinson v. State
| Decision Date | 16 March 1899 |
| Docket Number | 18,719 |
| Citation | 53 N.E. 223,152 Ind. 304 |
| Parties | Robinson v. The State |
| Court | Indiana Supreme Court |
From the Tipton Circuit Court.
Affirmed.
J. M Fippen, J. M. Purvis, Dan Waugh, J. P. Kemp and J. N. Waugh for appellant.
William L. Taylor, Attorney-General, Merrill Moores, J. W. Fesler and E. E. Stevenson, for State.
Appellant was convicted of an assault and battery with intent to commit voluntary manslaughter. He has assigned in this court as errors: (1) The overruling of his motion to quash the indictment; and, (2) the overruling of his motion for a new trial; but the only questions presented in his brief arise under the motion for a new trial.
Appellee contends that the bill of exceptions is not properly in the record. It appears that the motion for a new trial was overruled, and exception taken on the 24th day of March, 1898, and sixty days given appellant in which to file his bill of exceptions. On the 9th day of May, 1898, appellant filed in the office of the clerk the longhand manuscript of the shorthand report of all the evidence introduced in the cause. The next journal entry recites "that on the 16th day of July, 1898, in vacation * * * the defendant filed in the clerk's office his bill of exceptions herein, tendered to and signed by the Honorable Walter W. Mount, sole judge of said court, on the 15th day of July, 1898, which bill of exceptions embraces the original longhand manuscript of the shorthand report of the evidence filed in the clerk's office of said court on the 9th day of May, 1898, which bill of exceptions reads," etc. Then follows the bill of exceptions, at the close of which is a certificate of the presiding judge to the effect After the general certificate is the following:
The recital in the order-book that the bill of exceptions "was tendered to, and signed by the judge on the 15th day of July, 1898," goes for naught when it comes in conflict with the certificate of the presiding judge, in which it is stated, as facts, identified and authenticated by his signature, that the bill was "tendered and presented" to him for his signature on the 12th day of May, 1898, and finally approved by him, and ordered made part of the record on the 15th day of July, 1898. Indiana, etc., R. Co. v. Adams, 112 Ind. 302, 14 N.E. 80. It appears affirmatively from the record that the bill was prepared and presented to the presiding judge in due season, and it is therefore effective, although not finally approved nor filed until after the expiration of the prescribed time. Section 1918 Burns 1894, section 1849 Horner 1897; Vincennes Water Co. v. White, 124 Ind. 376, 24 N.E. 747; Terre Haute, etc., R. Co. v. Bissell, 108 Ind. 113, 9 N.E. 144. The bill of exceptions is properly in the record.
Upon the trial, the court limited the argument to thirty-five minutes on a side, and afterward extended it to forty minutes; and the appellant contends that this was an unreasonable allotment of time, and impaired his constitutional right to have his case fully presented to the jury. The record, however, shows appellant to be in the position of having taken no exception to this action of the court. It appears that when the court refused, upon request, to grant further time, the defendant "earnestly protested"; but it is nowhere shown that he at any time excepted or attempted to reserve an exception. "Protest" and "exception" are not equivalent terms in law. "Protested," in the sense conveyed by the record, means an expression of dissent to the act of the court, on the ground of impropriety or illegality, and nothing more. In law, "exception" has a technical signification. It implies that the expectant reserves the right to present an adverse ruling to a court, having cognizance of error, for review. Its office is to put the decision objected to of record for the information of an appellate tribunal. It will not do to say that the term "earnestly protested" conveyed any such meaning.
It is urged by appellant that the court erred in instructing the jury in the law of self-defense when there was no question of self-defense involved in the case. The bill of exceptions shows that the defendant at no time, in stating his defense to the jury, or in the introduction of his evidence, or in the argument to the jury, made any claim that he acted in self-defense, but placed his defense solely upon the ground and theory that he did not commit the assault and battery charged in the indictment. The bill also shows that the instructions upon the subject of self-defense were given upon the request of the State, and over the objection of the defendant. The evidence adduced shows that the defendant was at no time, assaulted by either of the prosecuting witnesses, nor menaced by any threat, sign, or...
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