Opinion
No. 13,667.
Filed May 10, 1929. Rehearing denied August 1, 1929.
1. APPEAL — Bill of Exceptions — Filing after Approval by Judge — Questions Depending on Evidence not Considered. — Where the record fails to show that a bill of exceptions containing the evidence was filed after it was signed and approved by the judge, no question depending on the evidence will be considered on appeal. p. 605.
2. CRIMINAL LAW — Appeal — Review of Instructions — Original Bill of Exceptions Instead of Copy. — On appeal from a judgment in a criminal prosecution, an instruction will not be considered where the original bill of exceptions containing the instructions was inserted in the transcript instead of a copy, as required by the rule stated in Mitchell v. Beissenherz, 192 Ind. 587, 135 N.E. 885. p. 606.
From Vanderburgh Circuit Court; Charles P. Bock, Judge.
Edwin Seibert was convicted of drawing and threatening to use a dangerous weapon, and he appealed. Affirmed. By the court in banc.
Oscar Birch, for appellant.
Arthur L. Gilliom, Attorney-General, and Harry L. Gause, Deputy Attorney-General, for the State.
Appellant was convicted on a charge of drawing, and of threatening to use while drawn, a dangerous weapon, a revolver, upon the person of James Graves. The motion for a new trial was overruled February 1, 1928, judgment rendered on the verdict, and sixty days given for bills of exceptions. Notice of appeal was served on the prosecuting attorney and appellant admitted to bail pending appeal. The error assigned is the overruling of the motion for a new trial, under which appellant attempts to present the sufficiency of the evidence to sustain the verdict, error in the giving and refusing to give certain instructions, and error in the admission of certain evidence.
A determination of the questions so attempted to be presented calls for a consideration of the evidence, which appellee contends is not in the record. The record filed in this 1. court contains an order-book entry to the effect that the bill of exceptions containing the evidence was filed in the clerk's office March 2, 1928. In his certificate to the transcript, he also certified that it was filed in his office on that day. The judge certified that the bill of exceptions was presented to him March 2, 1928, for his approval, that the same was taken under advisement, and that it was approved and signed by him March 13, 1928, and was, on that day, ordered filed and made a part of the record. There is no showing that it was ever filed in the clerk's office after it was signed by the judge. It follows that the evidence is not in the record, and since all the questions attempted to be presented depend on the evidence, no error is shown in the overruling of the motion for a new trial.
Affirmed.
ON PETITION FOR REHEARING.
Appellant contends that instruction 6, given by the court on its own motion, is erroneous under any evidence that might have been properly introduced. This contention cannot prevail. 2. The instructions are attempted to be brought into the record in this court by including therein the original bill of exceptions, instead of a copy of such bill. On authority of Mitchell, Exr., v. Beissenherz (1922), 192 Ind. 587, 135 N.E. 885, we hold no question is presented concerning the giving of the instructions.
Rehearing denied.