State v. Vanderbilt

• Decision Date: 12 October 1888
• Parties: State v. Vanderbilt.
• Court: Indiana Supreme Court

116 Ind. 11

18 N.E. 266

State

v.Vanderbilt.

Supreme Court of Indiana.

October 12, 1888.

Appeal from circuit court, Warren county; J. M. Rabb, Judge.

Information against Minnie Vanderbilt for assault and battery. The defendant was acquitted, and the state appeals.

L. T. Michener, Atty. Gen., for the State. C. V. McAdams, for appellee.

Zollars, J.

Appellee was tried and acquitted in the court below upon a charge of assault and battery. A bill of exceptions presented by the prosecuting attorney, and signed and filed at the time the exceptions were taken, shows the state, by the prosecuting attorney, excepted to the giving of an instruction by the court, and also excepted to the refusal of the court to give an instruction asked by the prosecuting attorney. The case seems to have originated before a justice of the peace. The clerk, in making the record for this appeal, has set out the affidavit upon which appellee was tried, and which was filed in his office by the justice of the peace, on appeal from his court, together with the proceedings in the circuit court, including the verdict and judgment of acquittal, and also the bill of exceptions. Counsel for the state contend that the court below erred in the giving of the one instruction and in the refusal of the other. Counsel for appellee, on the other hand, contend that there is no question before this court for decision, for the reason that the appeal was not taken in the manner prescribed by the statute. They insist that this court cannot determine whether there was error in the giving or refusal of the instructions, unless it is in some proper way advised of the nature of the charge upon which appellee was tried, and that we cannot look beyond the bill of exceptions to the affidavit set out in the record to determine what the charge was. Section 1846, Rev. St. 1881, provides that “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;” that “the bill of exceptions must state clearly so much of the record and proceedingsas may be necessary for a fair statement of the question reserved.” Section 1883, Id., provides that, “in case of an appeal from a question reserved on the part of the state, it shall not be necessary for the clerk of the court below to certify in the transcript any part of the proceedings and record except the bill of exceptions and the judgment of acquittal;” that, “when the question reserved is defectively stated, the supreme court may direct any part of the proceedings and record to be certified to them.”

Applied to a case like this, the strict construction put upon the above sections of the statute by appellee's counsel is not sustained by our cases. They are, in effect, that, on such appeal by the state, what is a part of the record without a bill of exceptions need not be embraced in such bill, and that, where the question of law reserved is shown by the record proper, no bill of exceptions is necessary. State v. Day, 52 Ind. 483;State v. Bartlett, 9 Ind. 569; Gillett, Crim. Law, § 1004. Those cases require that in this case we shall regard the affidavit as a part of the record, and that we shall look beyond the bill of exceptions to it to ascertain what the charge of appellee was. Looking to the record before us as a whole, we think that it sufficiently presents the question as to whether or not a teacher of a public school may establish and enforce by chastisement...