State v. Winstandley
| Decision Date | 29 November 1898 |
| Docket Number | 18,373 |
| Citation | 51 N.E. 1054,151 Ind. 495 |
| Parties | The State v. Winstandley |
| Court | Indiana Supreme Court |
From the Clark Circuit Court.
Affirmed.
W. A Ketcham, Attorney-General, Harry C. Montgomery, W. C. Utz and J. K. Marsh, for State.
A Dowling, Kelso & Kelso, Jewett & Jewett, M. Z Stannard and W. H. Watson, for appellee.
Appellee was indicted, tried, and acquitted of the charge of embezzlement. The indictment was based upon section 2031, Burns' R. S. 1894 (Acts 1891, p. 395). The State has appealed, and has assigned numerous errors, calling in question the action of the court in giving and refusing to give instructions. So far as the record shows, the court was not requested to instruct the jury in writing, nor is it shown that all the instructions given were in writing. Bills of exceptions containing instructions given by the court, as well as instructions requested by appellant, which the court refused to give, were signed and filed in the court below; but it is not stated in said bills, or either of them, that all the instructions given by the court are set forth therein. On the contrary, it is affirmatively shown by one of the bills of exceptions that some of the written instructions given have been omitted from the record. When, in a criminal case, it is not affirmatively shown by the bill of exceptions that it contains all the instructions given by the court to the jury, this court must presume that such bill of exceptions does not contain all the instructions given. Cooper v. State, 120 Ind. 377, 383, 384, 22 N.E. 320. In such case the presumption is that the substance of the instructions asked was embraced in the instructions given by the court which are not contained in the bill of exceptions, and that, if any instructions given by the court, and set out in the bill of exceptions, are erroneous, they were corrected or withdrawn by other instructions given by the court, and not set forth in the record. Pence v. Waugh, 135 Ind. 143, 157, 158, 34 N.E. 860; Board, etc., v. Nichols, 139 Ind. 611, 619, 620, 38 N.E. 526; Musgrave v. State, 133 Ind. 297, 32 N.E. 885; Forsyth v. Wilcox, 143 Ind. 144, 150, 41 N.E. 371. This doctrine is fully sustained by an eminent writer on the subject of appellate procedure, who says: Elliott App. Proc. Sec. 722. The same doctrine is declared and applied to other proceedings in the trial court.
In Robb v. State, 144 Ind. 569, 43 N.E. 642, complaint was made of misconduct of the prosecuting attorney in his opening statement to the jury, and this court held that it would presume that the trial court, in its instructions, withdrew any such misstatements of a prejudicial character, and directed the jury to disregard them, for the reason that all the instructions given were not in the record. The court, at page 572, said: "However, it is the duty of this court to indulge all reasonable presumptions in favor of the action of the trial court, and in doing so in this instance we must presume, the contrary not appearing, that the court in its charges to the jury withdrew any misstatements, of a prejudicial character, and directed the jury to ignore them." If the presumption in such a case is that the trial court withdrew the improper statements of the prosecuting attorney and directed the jury to disregard them, it certainly follows that, if the instructions are not all in the record, and any instruction contained therein is erroneous, it will be presumed, not only that the same was corrected, or the defect therein supplied by other instructions given, and omitted from the record, but that the same was withdrawn, and the jury directed to disregard it, if such presumption is necessary to prevent a reversal of the cause. It is true that it has been said in several cases where the instructions given were not all in the record that, unless the instructions in the record which were complained of were so radically wrong that no supposable instruction could correct them, a reversal would not follow, but it would be presumed that other instructions, not in the record, were given, which, when construed with those in the record, all taken together, correctly stated the law to the jury. Treager v. Jackson, etc., Mining Co., 142 Ind. 164, 166, 167, 40 N.E. 907, and cases cited. But we have not been cited to any case, and we have been able to find only one, Vancleave v. Clark, 118 Ind. 61, 66, 20 N.E. 527, in which this court, when the instructions given were not all in the record, refused to indulge the presumption that an error in giving an instruction was cured by another plainly withdrawing it, and reversed the cause because such withdrawal was not affirmatively shown by the record.
In the case of Lower v. Franks, 115 Ind. 334, 17 N.E. 630, it was said that "the giving of a fatally erroneous instruction can only be cured by a plain withdrawal of such instruction, and the withdrawal of such instruction will not be presumed, but must be affirmatively shown," citing a number of cases. In that case, however, it was held that the record showed that all the instructions given were in the record. Under such circumstances, where all the instructions given are in the record, the record must show that the fatally erroneous instruction was plainly withdrawn by another instruction. None of the cases cited in the case last named lend any support to the doctrine that, where all the instructions are not in the record, it must affirmatively appear that a "fatally" erroneous instruction was withdrawn; and, so far as Lower v. Franks may seem to hold such doctrine it was obiter dicta. The same may be said of all the cases, except Vancleave v. Clark, supra, which seems to hold that where all the instructions are not in the record it will not be presumed that a "fatally" erroneous instruction given was withdrawn by another instruction not...
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