State v. Phillips

• Decision Date: 27 November 1900
• Citation: 58 N.E. 727,25 Ind.App. 579
• Parties: STATE v. PHILLIPS.
• Court: Indiana Appellate Court

25 Ind.App. 579

58 N.E. 727

STATE

v.PHILLIPS.

Appellate Court of Indiana.

Nov. 27, 1900.

Appeal from circuit court, Kosciusko county; Hiram S. Biggs, Judge.

John C. Phillips was acquitted of hunting on inclosed land of another without consent, and the state appeals. Dismissed.

Wm. L. Taylor, Atty. Gen., Merrill Moores, C. C. Hadley, and M. H. Summy, for the State. Stookey & Biggs, for appellee.

ROBINSON, J.

Appellee was convicted before a justice of the peace of hunting on the inclosed land of another without written consent, contrary to the provisions of section 2220, Burns' Rev. St. 1894. He appealed to the circuit court, and from a judgment of acquittal the state appeals. The error assigned is as follows: “The court erred in its rulings upon the point of law reserved by the state for the decision of this court, in that it found appellee not guilty upon the agreed statement of facts.” Appellee suggests that, as no bill of exceptions has been filed, no question of law is properly reserved for decision by this court. The statute provides that appeals may be taken by the state, upon a judgment for the defendant on quashing or setting aside an indictment or information, upon an order of the court arresting the judgment, or upon a question reserved by the state. Section 1955, Id. Section 1915, Id., provides: “The prosecuting attorney may except to any opinion of the court during the prosecution of any cause, and reserve the point of law for the decision of the supreme court. The bill of exceptions must state clearly so much of the record and proceedings as may be necessary for a fair statement of the question reserved. In case of the acquittal of the defendant, the prosecuting attorney may take the reserved case to the supreme court upon an appealat any time within one year. * * *” The case at bar was not an agreed case. There was an agreement as to the facts. The agreed facts constituting the evidence have not been brought into the record, nor has any part of the evidence been brought into the record by any bill of exceptions. But even if the evidence, or so much as would be necessary to present the question reserved, had been brought up by a bill of exceptions, no question is presented by the assignment of error. The assignment is, in effect, that the court erred in finding appellee not guilty as charged. The opinion which this court is authorized to pronounce on appeals by the state must be upon matter of law, and not of fact. The...