State v. Moore
| Decision Date | 07 June 1901 |
| Docket Number | 3,433 |
| Citation | 60 N.E. 955,27 Ind.App. 83 |
| Parties | THE STATE v. MOORE |
| Court | Indiana Appellate Court |
From Blackford Circuit Court; E. C. Vaughn, Judge.
Orville K. Moore was prosecuted and acquitted on the charge of interfering with natural gas connections, and the State appeals.
Reversed.
A. M Waltz, W. L. Taylor, Attorney-General, Merrill Moores and C C. Hadley, for State.
J. A Hindman, S.W. Cantwell and L. B. Simmons, for appellee.
Section 2 of the act of June 3, 1891, § 2312 Burns 1894, provides: "It is hereby declared to be unlawful for any person to make, or cause to be made, any connection or reconnection, with the gas mains or service-pipes of any person, company, or corporation, furnishing to consumers natural or artificial gas, or to turn on or off, or in any manner interfere with any valve or stop-cock, or other appliances belonging to such person, company or corporation, and connected with its service or other pipes, or to enlarge the orifice of mixers, or to use natural gas for heating purposes except through mixers without first procuring from such person, company or corporation a written permit to turn on or off such stop-cock or valve, or to make such connections or reconnection, or to enlarge the orifice of mixers, or to use gas for heating without mixers, or to interfere with the valves, stop-cocks or other appliances of such person, company or corporation, as the case may be." The fifth section of the act provides the penalty for its violation.
Appellee was acquitted in a prosecution for unlawfully interfering with two valves or stop-cocks connected with the pipes of a corporation engaged in furnishing natural gas to consumers, by turning off the valves so as to stop the flow of gas, without first having procured a written permit to do so.
Counsel for appellee insist that no question is presented by the record for the reason that the appeal was not taken as the statute directs.
Section 1915 Burns 1894, § 1846 Horner 1897, provides:
Section 1956 Burns 1894, § 1883 Horner 1897, provides:
The State, by bills of exceptions, has brought to this court all the evidence given on the trial and the instructions given the jury.
The statute provides that an appeal may be taken by the State in certain cases, among them, "Upon a question reserved by the State." § 1955 Burns 1894, § 1882 Horner 1897. To reserve a question for review, an exception must be taken as the law directs, and carried into the record. "All the authorities point in one direction, and that is, that there must be a specific ruling made, a direct exception, and a bill of exceptions embodying the ruling, the exception and such facts as are necessary to enable the appellate tribunal to understand and decide the particular question reserved." Elliott's App. Proc. § 278, note. State v. Lusk, 68 Ind. 264.
Where there has been a verdict of acquittal in a criminal prosecution there can be no motion for a new trial. In a civil action the evidence can not be put into the record until the trial court has had an opportunity to review its finding or the jury's verdict. Doe v. Herr, 8 Ind. 24. In State v. Bartlett, 9 Ind. 569, where there had been a verdict of acquittal, it is said that "the entire evidence, even if set out correctly, is no part of the record." The reason given for the rule is that there could be no motion for a new trial, citing Doe v. Herr, supra. We do not think it necessary to inquire whether the case of State v. Bartlett, supra, intends to hold that, where the bill of exceptions contains all the evidence, and shows an objection to certain evidence, and an exception properly reserved, no question is presented, for the reason that the question thus sought to be raised is presented in the case at bar in an exception taken to instructions given.
Objection is made to certain instructions given and...
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