Fritz v. State

Myers, C. J.

Appellant was charged by affidavit, tried and convicted before a jury in the Howard Circuit Court of unlawfully selling intoxicating liquor. Acts 1921 p. 736, §8356d Burns’ Supp. 1921. From a judgment assessing a fine and imprisonment, he prosecuted an appeal to this court assigning as error the overruling of his motion for a new, trial. He relies on two causes only to support his motion: (1) Misconduct of the prosecuting attorney in his closing argument to the jury, wherein he asserts that the prosecuting attorney was permitted, over his objection, to read to the jury and comment upon the opinion of the Supreme Court reversing the judgment in a. former appeal of this identical case; (2) error of.the court in giving and in refusing to give certain instructions.

The first cause mentioned would present a very serious question if it were properly brought to our attention. Extracts from the closing argument of the prosecuting attorney to the jury appear only in the original bill of exceptions containing the evidence. The instructions given and refused by the court are not in the record by a bill of exceptions. Hence, the foregoing questions sought to be presented by this appeal are not before us for consideration.

Misconduct of counsel, in whatever form it may consist, is reviewable on appeal only when brought into the record by an independent bill of *231 exceptions.

Barksdale v. State (1919), 189 Ind. 170, 174 , and cases there cited.

In a criminal case, instructions given to the jury may be questioned, either singly or collectively, when all of them are included in a special bill of exceptions and copied as a part of the clerk’s transcript on appeal. Or, in case a party desires to challenge the action of the court in refusing to give instructions requested by him, then all of the instructions given and the ones refused, which he claims should have been given, must be embodied in a special bill of exceptions and transcribed into the record on appeal. In the instant case, no bill of exceptions containing the instructions was filed. Hence, the instructions are not properly here.

Tribbey v. State (1918), 189 Ind. 205 , 126 N. E. 481 ;

McNaught v. State (1924), 194 Ind. 209 , 142 N. E. 418 ;

Welch v. State (1924), 195 Ind. 87 , 143 N. E. 354 .

Judgment affirmed.