Summary
In Deitz v. State (1929), 89 Ind. App. 45, 46, 165 N.E. 770, that court said, "As the leave to file a bill of exceptions was not given until three days after the motion for a new trial was overruled, it was without authority and void, for the reason that the court can only grant such leave at the time and in the manner provided by statute, which was at the time that the motion for a new trial was overruled..."
Summary of this case from Rose v. StateOpinion
No. 13,580.
Filed March 29, 1929.
1. CRIMINAL LAW — Bill of Exceptions — Containing Evidence — Grant of Time for Presenting to Judge — When Made. — Where a bill of exceptions containing the evidence is not presented to the judge for approval until after the expiration of the term of court at which the trial was held, time for presenting such bill to the judge can only be granted when the motion for a new trial is overruled (§ 2330 Burns 1926), and a grant of time made three days after such ruling is void. p. 45.
2. CRIMINAL LAW — Bill of Exceptions — Containing Evidence — Grant of Time for Presenting to Judge — Grant Ineffective — Evidence not Considered. — Since time to present a bill of exceptions containing the evidence to the judge for approval at a subsequent term can only be granted on overruling the motion for a new trial (§ 2330 Burns 1926), such a bill presented to the judge at the following term is not in the record and the evidence will not be considered on appeal where time was granted three days after the motion for a new trial was overruled. p. 45.
From Washington Circuit Court; William H. Paynter, Special Judge.
Delaney Dietz was convicted of transporting intoxicating liquor, and he appealed. Affirmed. By the court in banc.
Walter G. Mead, Evan B. Stotsenburg, John H. Weathers and Sherman Minton, for appellant.
Arthur L. Gilliom, Attorney-General, and Arnet B. Cronk, for the State.
Appellant was convicted on an affidavit charging him with unlawfully transporting a quantity of intoxicating liquor, to wit, white-mule whisky, over and upon a certain public 1, 2. highway in Polk township, Washington county, Indiana. From the judgment, after his motion for a new trial was overruled, he appealed, presenting that the court erred in overruling his motion for a new trial. It appears by the record that on October 14, 1924, being in the October term, appellant's motion for a new trial was overruled. On October 17, 1924, judgment was rendered on the verdict of the jury, at which time appellant was granted ninety days in which to prepare and tender his general bill of exceptions containing the evidence. As the leave to file a bill of exceptions was not given until three days after the motion for a new trial was overruled, it was without authority and void, for the reason that the court can only grant such leave at the time and in the manner provided by statute, which was at the time that the motion for a new trial was overruled, § 2330 Burns 1926. As the bill of exceptions was not filed or presented within the term, and not until January 13, 1925, being in the January term, it is not in the record, and the evidence it purports to contain is not before us. Rose v. State (1909), 171 Ind. 662, 87 N.E. 103, 17 Ann. Cas. 228. Without the evidence, we cannot say that there was any reversible error in the giving of the instructions.
Affirmed.