State v. Hunt

• Decision Date: 15 May 1894
• Citation: 137 Ind. 537,37 N.E. 409
• Parties: STATE v. HUNT.
• Court: Indiana Supreme Court

137 Ind. 537

37 N.E. 409

STATE

v.HUNT.

Supreme Court of Indiana.

May 15, 1894.

Appeal from circuit court, Elkhart county.

William H. Hunt was tried for perjury, and acquitted, and the state appeals. Appeal sustained.

Henry D. Wilson, Hiram S. Briggs, and A. G. Smith, for the State. Ferrell & Hanan, for appellee.

McCABE, J.

The appellee was prosecuted and acquitted of the charge of perjury in the circuit court. The state appeals, and assigns many rulings of the trial court in the reception and rejection of evidence, and in giving and refusing instructions. We are met with an objection from the appellee to the consideration of the errors assigned,–that the bill of exceptions is not in the record. The trial ended on the 18th day of October, 1893, when the verdict of not guilty was returned, whereon judgment of acquittal was rendered. Ninety days' time was allowed to the state, in which to file a bill of exceptions. The bill of exceptions was filed on the 7th day of December next following. It is contended that the order was void because the statute only permits the court to allow 60 days after the judgment is rendered in which to file a bill of exceptions. That is the provision of the statute. 1 Burns' Rev. St. 1894, § 1916 (Rev. St. 1881, § 1847). But the bill was filed within 60 days next after the time the judgment was rendered. The court was authorized to allow 60 days, and it allowed 60 days, and more. It granted 90 days. Now, does the fact that it allowed 30 days more than the statute authorized it to allow, render the whole allowance of time invalid,–the 60 days it was authorized to allow, as well as the additional 30 days it was not authorized to allow? It has been held that where the order allowing time was for more than 60 days, and the bill was not filed until after the expiration of the statutory limit of 60 days, such bill of exceptions, though filed within the time allowed, is not in the record. Marshall v. State, 123 Ind. 128, 23 N. E. 1141;Bartley v. State, 111 Ind. 358, 12 N. E. 503. We are of opinion that, to the extent of 60 days of the time allowed, the order was valid. The order, as to all the time over that, was invalid; and, as the bill was actually filed within the time validly allowed, it was a substantial compliance with the statute, and it thereby became a part of the record.

It is contended by the appellee that no valid judgment of acquittal was rendered, and hence no appeal lies, and for that reason we are asked by the appellee to dismiss the appeal. In criminal cases the state is authorized to appeal in the following cases, and no other: (1) Upon a judgment for the defendant, quashing the indictment; (2) upon an order arresting the judgment; (3) upon a question reserved by the state. 1 Burns' Rev. St. 1894, § 1955 (Rev. St. 1881, § 1882). This appeal is prosecuted under the third and last specification. But there must be a judgment for the defendant in each case before an appeal will lie. The reason assigned, why there is supposed to be no judgment for the defendant, is that the transcript does not disclose that the record of the judgment set forth therein was signed by the special judge who tried the cause. Certified transcripts of proceedings of courts need not show that such proceedings were signed, the presumption being that they were duly and properly signed until the contrary is affirmatively made to appear in the transcript. Adams v. Lee, 82 Ind. 587;Anderson v. Ackerman, 88 Ind. 481;State v. Hanna, 84 Ind. 183. The motion to dismiss the appeal is therefore overruled.

It is next objected that the evidence set out in the bill of exceptions, embodying the original longhand manuscript of the shorthandreport thereof, is not shown ever to have been actually introduced in evidence on the trial, on account of the closing statement of the bill of exceptions being insufficient; and therefore it is insisted that no question is presented to this court, for want of the evidence. The closing statement of the bill is “that the above and foregoing longhand manuscript of the evidence so taken, reported, and filed as aforesaid contains all the evidence in said cause.” The contention is that it may be the evidence in the cause, and yet never have been introduced in evidence on the trial. We regard such contention as rather technical. What we are required to ascertain is, what does the language employed by the judge fairly mean? If it means that such evidence was actually introduced on the trial, that is sufficient. It would certainly be a strange construction of that language to say that the judge had reference to evidence that never was introduced on the trial. When we connect the language quoted with that in the caption of the bill of exceptions, its meaning is rendered undoubted. That reads as follows: “The following evidence was delivered and given to the jury trying the same [the cause], and the following rulings of the court were made in respect to the admission and rejection of evidence, and objections and exceptions thereto were made and taken as noted therein,” etc. This is clearly sufficient to show that the evidence was introduced.

The indictment charged that the alleged perjury had been committed by the accused in giving testimony as a witness in a trial of a civil cause in the Elkhart circuit court, wherein one Martin Peterson, a minor, by his next friend, was plaintiff, and the Lake Shore & Michigan Southern Railway Company was defendant, to recover damages for an alleged personal injury. The alleged injury sustained by the infant was caused by his attempt to get off of a certain box freight car in a freight train of that company, while the train was in motion, and in which effort he, while going down the ladder in haste, was caused to slip, or lose his hold, and fall in such a manner as that his arms fell across the rail, were run over by the wheels; crushing them so that they both had to be, and were, amputated between the shoulder and elbow. The boy seems not to have been connected with the railway company in any way, as employe or otherwise, and was a mere trespasser on the car. The point of contention on the trial of the damage suit was whether the company was at fault, in compelling the boy to attempt to get off while the train was running, and under such excitement as might, or probably might, have caused his fall and injury. It was claimed on the part of the plaintiff that a servant of the company–a brakeman on top of the car--ordered him off, threatened him with violence, applying to him abusive language, and pursued him with a club, and struck at him therewith, which frightened and alarmed him so that, in his haste to escape the vengeance of the brakeman, he became excited, so that he was caused to slip, and lose his hold on the ladder, which caused his fall and injury. The only part of these facts that the company controverted on the trial of the damage suit was that part relating to the conduct of their servant, the brakeman. The evidence of the company denied that part of the plaintiff's evidence in toto. The complaint charged the facts to be as above indicated, and the answer denied them. The material part of the indictment is as follows: “And the said issue was then and there tried in the said Elkhart circuit court before the said Honorable John M. Van Fleet, and before a jury of said county. * * * And upon said trial it became material to said Martin Peterson to show, by evidence in the cause, that the said Peterson was injured and damaged by said defendant railway company by the willful, wrongful, and unlawful act of its brakeman, as alleged in said complaint of the said Peterson; and it became material to said Peterson to prove that on the 25th day of October, 1891, the said freight train was passing along the right of way of the Lake Shore & Michigan Southern Railway Company, going west between” etc., “and that a brakeman named George Harris, being then and there on the top of said train, ran towards the said Martin Peterson, and threatened him, and struck at him, in order to make him, the said Peterson, get off of said train, and that the said George Harris ran after said Martin Peterson, and that he had a club in his hands, and that he struck at the said Martin Peterson, and that the said Martin Peterson fell off from the ladder of a car upon which he was climbing, and fell under the wheels of the said car, and that he fell on the track of said railway company, and that the wheels of certain cars ran over him, and that said William H. Hunt saw said Martin Peterson fall, and assisted to carry him away from the track, and that one Joseph Long and one Mary J. Long stood on the north side of the track of said railway company at the time Martin Peterson fell, and that they were in sight of said Peterson when he fell, and that the said Hunt was on the south side of the track of said railway company, behind said train, and that he saw said brakeman approach and threaten and strike at the said Martin Peterson, and that he saw the said Martin Peterson on the top of the train when the said brakeman was approaching him, and saw the said Martin Peterson fall off, * * * and that when said brakeman went after the said Martin Peterson, on the top of said train, the said Martin Peterson started to get on a ladder on one end of the car, and ran down on one end of the car, and that the said Hunt was fifteen feet south of the track on which said train was running, and that he saw said Martin Peterson start and run down the ladder, and then saw that he had fallen, and that he found the said Martin Peterson on the ground, on the south side of the track, after said accident, and that he was the first man that reached there, and that he helped carry the said Martin Peterson away. And to sustain said issue, * * * one William H. Hunt then and there appeared as a witness * * * on behalf of said Martin Peterson, and was then and there duly sworn in said court,...