Wharff v. State

• Decision Date: 11 October 1939
• Docket Number: No. 27255.,27255.
• Citation: 216 Ind. 18,22 N.E.2d 804
• Parties: WHARFF v. STATE.
• Court: Indiana Supreme Court

216 Ind. 18

22 N.E.2d 804

WHARFF

v.STATE.

No. 27255.

Supreme Court of Indiana.

Oct. 11, 1939.

Otis Wharff was convicted for assault and battery, and he appeals.

Affirmed.Appeal from Montgomery Circuit Court; Edgar A. Rice, Judge.

Arthur McGaughey, of Crawfordsville, for appellant.

Omer Stokes Jackson, Atty. Gen., and Hubert E. Dirks, Deputy Atty. Gen., for the State.

TREMAIN, Judge.

The appellant was prosecuted by affidavit for assault and battery. A trial by a jury resulted in a verdict of guilt upon which judgment was rendered. His motion for a new trial is predicated upon the error of the court in instructing the jury upon its own motion. Other assignments are waived by failure to discuss.

At the outset the appellant is met by an objection from the Attorney General in which he points out that the instructions are not legally in the record, or before the court in the manner provided by Sec. 9-2105, Burns' Ind.St.1933, Sec. 2317, Baldwin's Ind.St.1934. This section, after providing that the bill of exceptions shall contain the evidence necessary to present the questions of law, and the incorporation of the same in the transcript, provides as follows: ‘Provided, however, That if the original written instructions as given and/or refused by the court, shall be incorporated into any bill of exceptions, the court shall certify in his certificate to such bill of exceptions that such original written instructions are incorporated therein, and the bill containing such original written instructions shall be copied into the transcript by the clerk; Provided, That every pleading, motion in writing, report, deposition or other paper, filed or offered to be filed, in any cause or proceeding, whether received by the court, refused or stricken out, shall be a part of the record from the time of such filing or offer to file; and any order or action of the court in respect to any such pleading, motion in writing, report, deposition or other paper, and every exception thereto taken by any party shall be entered by the clerk on the minutes or record of the court, and the same when so entered shall be a part of the record without any bill of exceptions.’

The bill of exceptions does not contain the instructions given by the court. The appellant relies solely upon his right to bring the instructions before the court by having them copied in the transcript. This court has held in numerous decisions that the instructions are not a part of the record unless brought in by a special bill of exceptions, signed by the judge and filed with the clerk of the court; that this is the only method for bringing the instructions before this court in criminal appeals; and that the instructions copied into the transcript as a record entry cannot be considered.

It is stated in Smith v. State, 1926, 198 Ind. 614, 618, 154 N.E. 370, 371, that: ‘The only way instructions can be made a part of the record in a criminal case is by a bill of exceptions properly presented to and signed by the judge and filed.’

Also, see Lee v. State, 1938, 213 Ind. 352, 354, 12 N.E.2d 949; Rhodes v. State, 1930, 202 Ind. 159, 162, 171 N.E. 301,172 N.E. 176;Fritz v. State, 1926, 198 Ind. 229, 231, 153 N.E. 408;Steinmetz v. State, 1925, 196 Ind. 153, 147 N.E. 618;Ludwig v. State, 1908, 170 Ind. 648, 85 N.E. 345.

The appellant excuses his failure to bring the instructions before the court by a special bill of exceptions by relying on the following provision contained in said Sec. 9-2105 (23...