Smith v. The State
| Decision Date | 11 February 1896 |
| Docket Number | 17,669 |
| Parties | Smith v. The State |
| Court | Indiana Supreme Court |
From the Pike Circuit Court.
The judgment is affirmed.
F. B Posey and D. Q. Chappell, for appellant.
W. A Ketcham, Attorney-General, S. H. Spooner and M. Moores, for State.
The appellant was indicted, tried and convicted on the charge of attempting to commit a felonious assault upon the prosecuting witness, by shooting at him with intent to kill. The punishment inflicted was imprisonment in the State's prison for two years, and a fine of one dollar. At the time of the commission of the alleged offense the appellant was in the eighteenth year of his age.
After the finding of the jury, a motion was made for a new trial embracing a number of causes, among which was newly discovered evidence. Subsequent to the filing of the affidavit of appellant in support of his motion on this ground, together with the filing of affidavits of witnesses whose testimony he proposed to produce, if a new trial were granted, which filing was after the submission of the motion on the argument of counsel, but before the ruling of the court thereon, the appellant asked leave to file his additional affidavit on the question of diligence, which affidavit the court refused to allow to be filed.
Complaint is also made of the refusal of the court to approve and sign a bill of exceptions showing that the court declined to allow said additional affidavit for a new trial to be filed. The entry made by the judge upon such bill of exceptions was as follows: "This bill was tendered to me, but not signed, April 3, 1895." No claim is made by counsel for the State that the bill of exceptions is in any respect incorrect or untrue, nor is any reason given why it was not signed.
We do not think that a party who prepares and presents to the judge a proper bill of exceptions within the time allowed can be deprived of any rights thereunder by the failure or refusal of the judge to sign the same, provided the party takes due measures to secure his rights thereunder. Section 641, R. S. 1894 (section 629, R. S. 1881); State, ex rel., v. Slick, 86 Ind. 501; Hamm v. Romine, 98 Ind. 77; Robinson v. Anderson, 106 Ind. 152, 6 N.E. 12; Ohio & Miss. R. W. Co. v. Cosby, 107 Ind. 32, 7 N.E. 373; Vincennes Water Supply Co. v. White, 124 Ind. 376, 24 N.E. 747; Wysor v. Johnson, 130 Ind. 270, 30 N.E. 144.
It was said by Coffey, J., in Vincennes Water Supply Co. v. White, supra, that: "When a party entitled to a bill of exceptions tenders the proper bill within the time allowed by the court, he has done his whole duty, and the duty of signing and filing them remains with the judge." In such a case as said by Judge Mitchell, in Robinson v. Anderson, supra, the party "has complied with the letter and spirit of the statute, and is entitled to the benefit of his exceptions."
In this case, the affidavit which the court refused to be allowed to be filed is set out in the general bill of exceptions, and while it seems to show due diligence on the part of appellant as to the procurement of at least a part of the newly discovered evidence, yet it does not show any reason why the matters therein set out had not been stated in the original affidavit filed with the motion, nor any excuse for not filing the affidavit before the submission of the motion and the argument thereon.
It is true that counter-affidavits may be filed on the question of diligence in the procurement of newly discovered evidence, Zeller v. Griffith, Admr., 89 Ind. 80; and there does not seem to be any reason why additional affidavits also may not be filed to show such diligence. In Goings v. Chapman, 18 Ind. 194, it was held that a court may allow affidavits for a new trial to be amended at any time, so long as the motion is still pending and undetermined.
Yet in all these cases the question of presenting, filing and amending affidavits in support of or against a motion for a new trial, after the submission of such motion to the court and argument of counsel thereon, must be largely in the discretion of the court; and if no abuse of such discretion is shown it cannot be reviewed in this court. It is much like the offering of additional evidence in a trial after all the evidence is submitted on both sides, and the same has been argued before the court. While the court might hear further evidence in such a case, yet it would be purely a matter for the good judgment and sound discretion of the court whether this...
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