Day v. State

RYLAND, J.

This was an indictment for grand larceny, found by the grand .jury of Barry county, against the defendant, John Day, and one Jackson Ellis. The defendant, Day, prayed for a change of venue, and it was ordered by the court, and the case was sent to Newton county. The transcript of the record and proceedings was delivered to the clerk of the Newton Circuit Court some time in the month of October, in the year 1849 ; but the clerk omitted to indorse on the transcript the day the same was filed with him. At the first term of the Newton Circuit Court,-which was held after the change of venue in this case, and which commenced on the 30th day of October, 1849, the defendant moved to have the case continued, which was done accordingly. At the next term of said court the case was called for trial. The defendant stood mute, and refused to plead. The court directed the plea of not guilty to be entered, and a jury to be sworn and impanneled to try the issue. After'the jury was sworn, the circuit attorney discovering that the clerk had omitted to indorse the time of the filing on the transcript of the record and proceedings had in this case in Barry Circuit Court, moved the court to permit the clerk to indorse the day of the filing of the same, now, for then. The court examined the deputy clerk as to the time when said transcript was placed in the clerk’s office, and being satisfied that the same had been delivered to the clerk about the time mentioned above, directed the clerk to indorse the same by putting the time of filing thereon. This the defendant excepted to, and tendered his bill of exceptions, setting forth the substance of the above facts. This action of the Circuit Court is relied on as one of the reasons for reversing the judgment in this case. The trial was had ; the jury found the defendant guilty, and assessed his punishment to five years’ imprisonment in the State penitentiary.

All the instructions asked for by the State, as well as all asked for by the defendant, were given to the jury. After verdict, the defendant moved for a new trial, assigning the following reasons, among others : “Because the defendant was tried on an indictment which never was properly in this court, previous to the entering of the plea and the swearing of the jury. Because the court rejected evidence that ought to have been admitted.”

The bill of exceptions shows, that after the State had closed her evidence in chief, the defendant read the deposition of one Rachel Murdock, and closed his *305 defense. The State then introduced witnesses to impeach the credibility of the defendant’s witness, Murdock, by stating her general character. William Curry, a witness, staled that he was acquainted with the general character of Rachel Murdock for truth and varaeity ; that it was bad ; that from her general character he could not believe her on oath. Defendant then asked Curry, “If he had heard any person speak of her general character when on oath, before she gave evidence in this case, and if so, what did they say ?”

To this question the State, by her attorney, objected ; the c’ourt sustained the objection, and the defendant excepted. This appears as the only objection made to any evidence given on the trial for either party, and was the only question which the court refused to permit to be answered.

The court overruled the motion for a new trial. The defendant then moved in arrest of judgment, assigning as reasons the act of the court in permitting the transcript of the record and proceedings to be marked filed, as before, noticed, “that there was no sufficient indictment in this case, before the plea was entered and the jury sworn. That there never was in this case any sufficient indictment properly in this court; and that the said indictment is informal, insufficient and uncertain.” The court overruled the motions for a new trial and in arrest of judgment. The defendant brings the. case to this court by appeal.

The only grounds for our interference with the judgment of the Circuit Court, relied upon, as appears from the record in this case (there being no counsel in this court for the defendant), are the acts of the court below, in directing the clerk to mark on the transcript the day when it "was delivered to him, and the sustaining of the objection made by the circuit attorney to the question put by the defendant to witness, Curry, as above set forth.

We find nothing wrong or improper in the court ordering the clerk to mark the time on the transcript when it was filed. It was an act that could not probably operate to the injury of the defendant. It was marked .as filed on the 30th day of October, 1849, the first day of the first term of Newton Circuit Court, to which the venue had been changed, after the order making such change ; at which term and on which day, the defendant appeared and moved, for a continuance, and filed therefor his affidavit. The case was continued. Now, what harm was done to the defendant, by the omission of the clerk to indorse the time on the transcript when it was first delivered to him ? What effect could it have on the trial of the case before the jury ? What influence on the defendant’s privilege to summon witnesses, or to make preparation for trial ? We can see no event arising from such omission, or from supplying it now, for then, that could have the least bearing on the trial. We therefore find nothing in this point.

As to the question which was asked of witness, Curry, it was not strictly legal, and might well have been overruled. We have regretted, however, to perceive such objections to questions which could not affect the case in any way. In this case, it was to prove what other persons had said about the witness, Murdock’s, veracity on oath. We see it in the bill of exceptions, that the witnesses were asked on what they formed their opinion of her general bad character. We hold that the evidence of general bad character of a witness need not be confined to the single fact of want of veracity on oath. From the whole evidence, as preserved in the bill of exceptions, we think the defendant had the full benefit of the above question to witness, Curry, although the court refused to let the answer be made by witness.( a )

The instructions given by the court for the defendant, were the most favorable that could have been given. The case was placed before that jury in the fairest point of view for the defendant. Indeed the State might complain of some of these instructions as stretching the law to too great a length for the defendant ; but of this defendant cannot complain. The indictment we consider sufficient. We have examined the whole record and proceedings in this case, and find no error requiring the action of this court to correct. Let the judgment, therefore, he affirmed.

(a) See ante, 236