Taylor v. State
| Decision Date | 13 October 1921 |
| Docket Number | 23,791 |
| Citation | 132 N.E. 294,191 Ind. 200 |
| Parties | Taylor et al. v. State of Indiana |
| Court | Indiana Supreme Court |
From Lawrence Circuit Court; Robert Mellen, Special Judge.
Prosecution by the State of Indiana against William R. Taylor and others. From a judgment of conviction, the defendants appeal.
Affirmed.
William N. Harding, Omer U. Newman and Fred N. Fletcher, for appellants.
U. S Lesh, Attorney-General, and Dale F. Stansbury, for the state.
This was an action in which the appellants, William R. Taylor Paul Taylor and Cecil Taylor were charged by an indictment in three counts with burglary, larceny and conspiracy to commit a felony. Indictment was found in the Jackson Circuit Court, and the cause sent to Lawrence county on change of venue for trial. Each defendant entered a plea of not guilty. The case was tried by jury and the jury found the defendants guilty, on all the counts as charged in the indictment. The court rendered judgment upon the verdict of the jury, adjudging each defendant guilty upon each count of the indictment.
From such judgment appellants appeal. The errors relied upon for reversal are: 1. "The court erred in overruling appellants' motion made separately and severally to quash each count of the indictment separately and severally." 2. "The court erred in overruling appellants' motion for a new trial, separately and severally."
In appellants' brief, under propositions, points and authorities, the only count of the indictment discussed is the first one, which charges burglary in the second degree. It is claimed by appellants that this count does not state the offense with sufficient certainty because it says that the appellants did break and enter into the private garage of Henry H. Holburn. Thus using the word garage without defining its meaning and does not affirm that the private garage was a building.
It was not necessary that the indictment should define the word garage. The word is well understood and is not of doubtful meaning. The Standard Dictionary says a garage is a building for the storage of automobile vehicles. This meaning is well understood by the people among whom the word is used. This count of the indictment conforms in every particular with the statute under which it was drawn. We think it describes the offense with sufficient certainty. No objection is pointed out to the second and third counts of the indictment and we see none. Each count of the indictment was sufficient to withstand appellants' motion to quash.
The Attorney-General contends that no question is properly presented on the action of the court in overruling appellants' motion for a new trial, for the reason that there are no bills of exception in the record. It appears from appellants' brief and from an examination of the record that what purports to be a longhand transcript of the evidence appears in the record immediately following the index and the clerk certifies that said longhand transcript was filed on June 28, 1920, and the judge certifies that on June 28, 1920, the defendant tendered his bill of exceptions. The clerk certifies that, on July 5, 1920, the defendants filed their general bill of exceptions containing the original longhand transcript of all the evidence and the clerk further certifies that the bill of exceptions herein above inserted is the same identical and original bill of exceptions duly filed by the defendants in the office of the clerk on June 28, 1920.
When a bill of exceptions containing the evidence is to be filed after the term, leave therefor must be given by the court at the time of the ruling on the motion for a new trial. Bass v. State (1918), 188 Ind. 21, 120 N.E. 657, and cases there cited. It appears from the record that the motion for new trial was overruled on May 1, 1920, being the last day of the March term, 1920, of the Lawrence Circuit Court, and no time was given within which to file the bill of exceptions. It further appears from the record that the bill of exceptions was tendered to the judge and signed on June 2, 1920, and filed by the clerk on July 7, 1920. Therefore, the purported bill of exceptions, not being filed in compliance with the law, cannot be considered as a part of the record, and no question presented by such bill of exceptions can be considered by the court.
It appears from the return to a writ of certiorari, that on April 23, 1921, a petition was filed in the Lawrence Circuit Court for a nunc pro tunc entry, to change the record so as to show that time was taken in the original case by the defendants in which to present and file their bill of exceptions. After due notice to the prosecuting attorney, the appellants and the prosecuting attorney appeared in the Lawrence Circuit Court, on the hearing on said motion, and evidence was submitted and the court after hearing such evidence made a finding and judgment "that the petitioners are not entitled to an order-book entry showing that time was given and granted them in which to file their said bill of exceptions and said petition as to this is now overruled." The court at the same time made a...
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