Rowan v. State

Spencer, J.

1. This is an appeal from a judgment of conviction based on an affidavit which charged appellant with a violation of §8351 Burns 1914, Acts 1907 p. 689. The affidavit was originally filed in the city court of the city of Marion, where appellant was' tried and found guilty of the offense charged. He appealed to the circuit court of Grant County and there filed a special plea in bar to the further prosecution of - this action. Appellee’s demurrer to said special plea was sustained and that ruling of the trial court is now challenged by appellant’s first assignment of error. In the preparation of his brief, however, appellant has failed to set out a copy of his special plea and the demurrer addressed thereto; or to state the substance of either. Rule 22, clause 5, of the rules of this court expressly provides that the appellant’s original brief shall contain “a concise statement of *401 so much of the record as fully presents every error and exception relied on,” and is applicable in criminal as well as in civil cases. The failure of appellant to comply with .this rule in the particulars above suggested must be deemed a waiver of the alleged error in question. Rigrish v. State (1912), 178 Ind. 470, 475 , 99 N. E. 786 ; Holliday v. Anheier (1910), 174 Ind. 729 , 93 N. E. 1 ; Myers v. State (1909), 171 Ind. 673 , 87 N. E. 141 .

2. 3. *402 4. 5. 6 *403 7.

*401 The second assignment of error is that the court erred in overruling appellant’s motion for a new trial. This motion contains ' eight grounds, of which the fifth is “that the court erred in sustaining demurrer to defendant’s special plea in bar.” The ruling on a demurrer, however, can not be urged as ground for a new trial [Herron v. Herron (1883), 91 Ind. 278, 280 ], but is properly presented for review only by an independent assignment of error. The remaining grounds of appellant’s motion require a consideration of the evidence and of the instructions given by the court to the jury which tried .the cause. Appellee contends, however, that neither the evidence nor the instructions are properly in the record and its position is well taken. The record before us contains a transcript of certain order book entries made, and of papers filed in the ease, at the close of which there ■ is a general certificate of the clerk of the Grant Circuit Court, under date of July 24, 1915, to the effect that said transcript contains a full, true and correct copy of all of such entries and papers. Immediately .following this certificate there is included in the record a paper which purports to be a bill of exceptions. It contains a further transcript of papers filed and entries made in the case, a statement of the evidence alleged to have been given *402 at the trial, and a copy of the instructions given to the jury. At the close of that part of the “bill of exceptions” which contains the pleadings and order book entries referred to, there may be found the signatures of ■ the trial judge and the clerk of the Grant Circuit Court,- while at the end of the entire paper the court reporter has certified “the above and foregoing to be a full, true and correct copy of all evidence taken by me in the ease of State of Indiana v. Fred Rowan.” The trial judge nowhere certifies that the bill of exceptions, or so much thereof as assumes to set out the evidence, contains all of the evidence given at' the trial and there is no certificate of the clerk following the alleged “bill of exceptions” which authenticates any part thereof. It has been frequently held that the general certificate of the clerk should not precede or form a part of the bill of exceptions containing the evidence, but should be at the conclusion of the transcript and authenticate the bill of exceptions containing the evidence, as well as all other papers and entries embraced in the transcript. Johnson v. Johnson (1901), 156 Ind. 592, 594 , 60 N. E. 451 , and cases cited. Also, that a statement in the court reporter’s certificate, appended to the evidence transcribed by her and embodied in the bill of exceptions, that the evidence so transcribed is all of the evidence given in the case is mere surplusage, constitutes no part of the bill of exceptions, and can not be considered. Wagner v. Wagner (1915), 183 Ind. 528 , 109 N. E. 47 . Furthermore, it affirmatively appears that the instrument which purports to be a bill of exceptions was filed with the clerk of the Grant Circuit Court on August 2, 1915, which was nine days after the authenticity of the record was certified to by the clerk. See Nurrenbern v. Daniels *403 (1904), 163 Ind. 301 , 71 N. E. 889 , and cases cited. It is clear, therefore, that the evidence is not in the record and as the instructions, which were improperly included in the “bill of exceptions” containing the evidence, are not made a part of the record in any other manner, no question is presented as to their giving or refusal.

8. The third and last assignment of error is an independent attack on the action of the trial court in admitting, over appellant’s objection, certain items of evidence. Questions of this character may be presented only as grounds of a motion for a new trial and will then be considered only when the evidence is properly in the record.

9. The burden rests on the appellant to see that the record in a case contains a complete and accurate transcript of so much of the proceedings below as shall be sufficient properly to present to this court the alleged errors of which he complains. Weideroder v. Mace (1916), ante 242, 111 N. E. 5 . As appellant in the case at bar has failed properly to present any question for our consideration, the judgment of the trial court must be and is affirmed.

Note. — Reported in 111 N. E. 431 . See, also, under (1) 12 Cyc 877; (2) 12 Cyc 874; (3) 12 Cyc 858; (6) 12 Cyc 853; (7) 12 Cyc 871; (8) 12 Cyc 867; (9) 12 Cyc 864.