Smith v. State

• Decision Date: 06 March 1939
• Docket Number: 27043.
• Citation: 19 N.E.2d 549,215 Ind. 276
• Parties: SMITH v. STATE.
• Court: Indiana Supreme Court

19 N.E.2d 549

215 Ind. 276

SMITH v. STATE.

No. 27043.

Supreme Court of Indiana

March 6, 1939

Appeal from Henry Circuit Court; John H. Morris, Judge.

Eugene H. Yergin, of New Castle, for appellant.

Omer S. Jackson, Atty. Gen., and Walter O. Lewis, Deputy Atty Gen., for the State.

TREMAIN Chief Justice.

This is an appeal by the appellant from a conviction of murder in the second degree. He was charged by grand jury indictment with killing one Bertram Soini. Judgment was rendered upon the verdict. Appellant filed a motion for a new trial, assigning 36 separate grounds therefor. The motion was overruled, an appeal was prayed, and the record filed in the clerk's office of this court.

The attorney general has moved to dismiss the appeal upon the ground that the appellant did not perfect the appeal within 60 days after serving notice of the appeal on the prosecuting attorney, citing the statute and several decisions of this court to sustain his proposition. The statute cited, Section 9-2308, Burns' Ind.St.1933, Sec. 2372, Baldwin's Ind.St.1934, provides: 'All appeals must be taken within one hundred and eighty (180) days after the judgment is rendered, or in case a motion for a new trial is filed within one hundred and eighty (180) days after the ruling on such motion. The transcript must be filed within sixty (60) days after the appeal is taken.'

Section 9-2310, Burns' Ind.St.1933, Sec. 2374 Baldwin's Ind.St.1934, provides for notice and filing of the record in the office of the clerk.

Evidently the attorney general has overlooked the provisions of the rules of this court adopted June 21, 1937. Rule 1 provides: 'Appeals from final judgments in all civil and criminal cases in which the final judgment is entered or a motion for a new trial is ruled upon subsequent to the thirty-first day of August, 1937, must be taken within 90 days of the date of the judgment or the ruling on the motion for a new trial.'

Rule 3 provides: 'If notice of an appeal not taken in term shall be given below, it shall be sufficient notice if the transcript is filed in the office of the clerk within the time provided for taking appeals under Rule 1.'

These rules supersede Sections 9-2308 and 9-2310, supra, by reducing the time of taking an appeal from 180 days to 90 days, and provide for but one notice which shall be sufficient if the appeal is 'taken within 90 days of the date of the judgment or the ruling on the motion for a new trial.'

In this case the record shows that notice of the appeal was acknowledged by the prosecuting attorney on December 3, 1937, and the transcript was filed with the clerk of the Supreme Court on February 26, 1938, 85 days after the service of notice. The 60-day provision of the old statute does not now control. So long as a notice has been given by the appellant and the transcript filed in the office of the clerk within 90 days from the date of judgment or the ruling on a motion for a new trial, it will be sufficient. The record in this case discloses that the motion for a new trial was overruled December 1, 1937, 87 days before the record was filed in this court. This was sufficient. The motion to dismiss the appeal was heretofore properly denied.

The only error relied upon for reversal is the overruling of the appellant's motion for a new trial. The motion for a new trial, the ruling of the court thereon, and exceptions thereto are not filed as a part of the original record, but are contained in and made a part of the bill of exceptions. The attorney general asked that the appeal be dismissed for this reason.

It is a well-settled rule of this court that the motion for a new trial, rulings thereon, exceptions thereto, and record entries relating to the filing...