State v. Thompson

• Citation: 78 N.E. 328,167 Ind. 96
• Decision Date: 28 June 1906
• Docket Number: No. 20,729.,20,729.
• Parties: STATE v. THOMPSON.
• Court: Indiana Supreme Court

167 Ind. 96
78 N.E. 328

STATE
v.
THOMPSON.

No. 20,729.

Supreme Court of Indiana.

June 28, 1906.

Appeal from Circuit Court, Pike County; E. A. Ely, Judge.

Prosecution for perjury against Charles B. Thompson. From a judgment on a verdict of acquittal, the state appeals. Appeal not sustained.

[78 N.E. 329]

C. W. Miller, C. C. Hadley, W. C. Geake, L. G. Rothschild, and Bomar Traylor, for appellant. J. W. Wilson, Dillon & Ely, and S. G. Davenport, for appellee.

JORDAN, C. J.

On December 17, 1904, an indictment against appellee, Charles B. Thompson, was returned into the Pike circuit court by the proper grand jury, charging that said Thompson, on December 2, 1904, at the county of Pike, state of Indiana, committed the crime of perjury. To this charge the accused pleaded not guilty, and on a trial by jury a verdict of acquittal was returned, and judgment was rendered thereon by the court that he be discharged and go hence without day. From this judgment the state, by its prosecuting attorney, has appealed to this court under sections 1915 and 1955. Burns' Ann. St. 1901.

The rulings upon which the assignment of errors are predicated relate to the exclusion of certain evidence offered by the state. It is claimed by its counsel that this evidence, together with the rulings of the court thereon and the exceptions reserved thereto, is exhibited by the original bill of exceptions, which has been certified up by the clerk of the lower court, instead of a transcript thereof. It appears that the prosecuting attorney made and filed with the clerk below a præcipe for a transcript. This præcipe is attached to and made a part of the clerk's certificate to the record herein. By this præcipe the clerk was requested and directed to prepare and “certify a full, true, and complete transcript of the proceedings, papers on file, and the judgment” in the cause, “to be used on appeal to the Supreme Court.” The præcipe in no manner directed or requested the clerk to certify the original bill of exceptions. We are met with the contention of counsel for appellee that because the clerk has certified up the original bill of exceptions, instead of a transcript thereof as directed, said original bill cannot be considered as a part of the record in this appeal. We have repeatedly held that in appeals to this court, where the præcipe made by the party taking the appeal calls for a transcript of the proceedings, or record, etc., and that thereupon the clerk certifies up the original bill of...