Steinmetz v. State

• Decision Date: 28 April 1925
• Docket Number: 24,641
• Citation: 147 N.E. 618,196 Ind. 153
• Parties: Steinmetz v. State of Indiana
• Court: Indiana Supreme Court

147 N.E. 618

196 Ind. 153

Steinmetz v. State of Indiana

No. 24,641

Supreme Court of Indiana

April 28, 1925

1. CRIMINAL LAW.---Instructions must be brought into the record by bill of exceptions.---No question on the ruling of the court in giving or refusing instructions can be considered on appeal where the instructions are not brought into the record by bill of exceptions. p. 154.

2. CRIMINAL LAW.---If the verdict is not supported by any evidence, it is an error of law.---If there is no evidence to support the finding, or no evidence to support any fact essential to the support of the verdict or finding the verdict is an error of law which may be reviewed. p. 155.

3. CRIMINAL LAW.---Only the evidence tending to support the verdict will be considered on appeal.---In considering whether or not the evidence is sufficient to sustain the verdict only the evidence tending to support the verdict will be considered, with inferences to be drawn therefrom. p. 155.

From Miami Circuit Court; Albert Ward, Judge.

George Steinmetz was convicted of assault and battery, and he appeals.

Affirmed.

Albert H. Cole and Tillett & Lawrence, for appellant.

U. S Lesh, Attorney-General, and George A. Matlack, for the State.

OPINION

Willoughby, J.

A jury in the Miami Circuit Court found the appellant guilty of assault and battery upon one Frank W. Lucas, and fixed his punishment at a fine of $ 500 and that he be imprisoned in the county jail for a period of thirty days. A motion for a new trial was overruled and the court rendered judgment on the verdict, from which judgment this appeal is taken.

The only error assigned is that the court erred in overruling appellant's motion for a new trial. Under this assignment of error the appellant discusses in his brief the sufficiency of the evidence to sustain the verdict and also claims that the court erred in giving and refusing certain instructions.

An examination of the record shows that the instructions were not put into the record by a bill of exceptions therefore no question concerning the ruling of the court in the giving or refusing of instructions can be considered in this court on appeal. §§ 2330-2332 Burns 1926, §§ 2163-2165 Burns 1914, Acts 1905 p. 584; Ewbank's Manual (2d ed.) § 28c; Donovan v. State (1908), 170 Ind. 123, 83 N.E. 744; Ludwig v. State (1908), 170 Ind. 648, 85 N.E. 345; Tribbey v. State (1918), 189 Ind. 205, 126 N.E. 481; Taylor v. State (1921), 191 Ind. 200, 132 N.E. 294; Patton v. State (1922), 192 Ind. 632, 135 N.E. 795.

The appellant claims that the verdict is not supported by sufficient evidence. If there be no evidence to support the verdict or finding, or if there be no evidence to support any fact essential to the support of the verdict or finding, then such verdict or finding is an error of law which may be reviewed and corrected in this court on appeal. Patterson v. State (1921), 191 Ind. 224, 132 N.E. 585.

In considering whether or not the evidence is sufficient to sustain the verdict only the evidence tending to support the verdict will be considered with inferences to be drawn therefrom and the court will not consider any evidence which contradicts the evidence in support of the verdict. James v. State (1921), 190 Ind. 629, 130 N.E. 115; Lee v. State (1921), 190 Ind. 531, 131 N.E. 3; Schulmeyer v. State (1919), 188 Ind. 463, 124 N.E. 490; Howard v. State (1921), 191 Ind. 232, 131 N.E. 403.

In this case it appears from the evidence that the prosecuting witness was wounded by the appellant; that the act was done in Miami county, Indiana, July 13, 1923. The extent of the injury may be shown by the statement of the physician, who attended the prosecuting witness. Among other things, in his evidence, he states, that...