Smith v. State
| Decision Date | 23 November 1926 |
| Docket Number | No. 25202.,25202. |
| Parties | SMITH v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Warrick Circuit Court; Caleb J. Lindsey, Judge.
Sam Smith was convicted of assault and battery on a female child with felonious intent, and he appeals. Affirmed.
James W. Davis, of Booneville, for appellant.
Arthur L. Gilliom, Atty. Gen., and Harry L. Gause, Deputy Atty. Gen., for the State.
Appellant was convicted of an assault and battery on a six year old girl with felonious intent. Overruling his motion for a new trial is assigned as error, under which assignment he insists that the trial court erred in admitting certain evidence, and that the evidence is not sufficient to sustain the verdict of guilty.
The bill of exceptions, which purports to recite the evidence, does not contain a statement to the effect that it contains all the evidence given in the cause. The judge merely certified that the bill was presented to him with a request that it be signed, sealed, and made a part of the record, that it was taken under advisement for examination and consideration, and that “now, on the 4th day of May, 1926, the foregoing bill of exceptions is signed, sealed, and made a part of the record and filed with the clerk of the Warrick circuit court.” And an order book entry recites that on the 4th day of May, 1926, the bill of exceptions, duly approved and signed by the judge, “is now filed as a part of the record in this cause, and is in the words and figures following,” after which appears the bill of exceptions, with this certificate of the judge attached as part of it.
[1] What purports to be a certificate by the reporter, who took down in shorthand and afterward transcribed the evidence, is also incorporated in the transcript; but the judge did not certify that any of the statements therein are true, the reporter's certificate not being incorporated in the bill of exceptions, but appearing in the transcript after the judge's certificate “to the foregoing bill of exceptions.” A certificate by the reporter to the effect that the manuscript prepared by him contains all the evidence in the cause, which is incorporated in the bill of exceptions, is not competent to establish that fact, but must be disregarded. Adams v. State, 156 Ind. 596, 603, 59 N. E. 24;Black v. State, 171 Ind. 294, 296, 86 N. E. 72.
[2] Where the bill of exceptions does not show that it contains all the evidence given in the cause, questions arising upon the evidence are not before the court, and cannot be considered. Guenther v. State, 141 Ind. 593, 595, 41 N. E. 13;Rowan v. State, 184 Ind. 399, 403, 111 N. E. 431;Sunderman v. State (Ind. Sup.) 151 N. E....
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