162 Ind. 174 | Ind. | 1904
Appellant was found guilty of murder in the first degree, and his punishment assessed at imprisonment in the state prison for life. The only error assigned and not waived is the overruling of his motion for a new trial.
The questions presented arise upon the bill of exceptions, which counsel for the State insist is not in the record, because not presented to and signed by the judge and filed within the time allowed by statute.
The verdict was returned November 7, 1901. Appellant’s motion for a new trial was filed November 9, 1901,
The statute regulating the filing of' bills of exceptions in criminal cases is as follows: “All bills of exceptions, in a criminal prosecution, must be made out and presented to the judge at the time of the trial, or within such time thereafter as the judge may allow, not exceeding sixty days from the time judgment is rendered.” §1916 Burns 1901. At the time the motion for a new trial was overruled, an exception was properly reserved. The 120 days granted by the court for the filing of the bill of exceptions did not expire until April 1, 1902, nor extend more than sixty days beyond the date of the. judgment. The bill was filed fifty-one days after the judgment was rendered, and was within the time allowed. Besides, it appears that at the time the judgment was rendered the court made a further order allowing the appellant sixty days from that date to prepare and file his bill, and the time so allowed did not expire until April 4, 1902. Under either order, the bill was filed in time. Barnaby v. State, 106 Ind. 539;
Where the signing and the filing of the hill appear to have been done on the same day, it will be presumed, in the absence of anything to the contrary in the record, that the bill was signed before it was filed. Martin v. State, 148 Ind. 519; Bradley, etc., Co. v. Whicker, 23 Ind. App. 380.
Under the act of 1897 (Acts 1897, p. 244, §638a Barns 1901) it was proper to make the original bill of exceptions containing the evidence a part of the record. The act expressly extended to criminal cases. Adams v. State, 156 Ind. 596.
There were many reasons presented by appellants as grounds for a new trial. In the course of his cross-examination the prosecuting attorney asked the defendant if he did not tell Edna Cothrell, as he took her to Ohurubusco, that he (witness) had taken Alpha Bennett and her sister to the World’s Eair at Chicago, and that they had registered at the hotel as man and wife, occupied the same room, and had a good time. Appellant answered the question in the negative. Subsequently, in rebuttal, the court permitted Edna Cothrell, over appellant’s objection, to testify concerning the statement denied by appellant. This ruling of the court is challenged, and urged as a reason for a new trial. It is insisted by appellee that the subject-matter complained of is not set forth in the motion for a new trial with sufficient certainty to present any question, because neither the answer, nor the substance of the answer to the question is set out in the motion. The assignment in the motion for a new trial is as follows: “Error of law occurring on said trial in this: that the court erred in permitting the State to ask its witness, Edna Cothrell, on rebuttal, and in permitting said witness to answer the
A litigant who desires to present to an appellate tribunal for review rulings of the trial court made in the course of the trial, aiid which he deems erroneous and prejudicial, is required to state such controverted matter in a motion for a new trial in such terms as will clearly indicate to the coqrt the identity of the particular subjects and rulings complained of. The principal object of the rule is to give the trial court a further opportunity to consider and correct any error he has made while the case is still under his control. State, ex rel., v. Swarts, 9 Ind. 221, 222.
If the challenged ruling relates to the admission of evidence, it is not necessary that the question and answer be set out in full, but the law and its’purpose are satisfied if the name of the witness and the subject and substance of the point are stated in such language as will apprise the trial court with reasonable certainty of the character and scope of the particular ruling. Humphries v. Marshall, 12 Ind. 609; Shirk v. Cartwright, 29 Ind. 406; Evans v. State, 67 Ind. 68.
As was declared in Ohio, etc., R. Co. v. Stein, 133 Ind. 243, 257, 19 L. R. A. 733: “It is not the practice and it is not incumbent on a party in a motion for a new trial to set out in detail a verbatim copy of the evidence admitted over objection, or offered and refused, or a verbatim statement of the objections made to its introduction. It is sufficient if the evidence be referred to with such .certainty as to call the attention of the court to it and to
Without setting out everything in hcec verba, it is difficult to see how more certainty eould be observed than is revealed by the assignment in the motion for a new trial. The court is informed that the testimony complained of was given in rebuttal, that it was given by Edna Oothrell, that it related to a statement made by the defendant in a conversation between witness and defendant in going to or from Ohurubusco on a particular occasion, and the question itself is set forth in the precise words submitted to the witness over the defendant’s objection. The question was answerable by yes or no. A negative answer could have done no harm. That the answer was in the affirmative would be implied to any intelligent court from the fact that the party against whom it was directed was in court complaining about it. The way the subject was presented to the court left no room for conjecture, or even doubt, as to the particular item of evidence and ruling referred to, and this was abundantly sufficient.
Was the admission of the testimony erroneous ? The record shows that it was a part of a conversation the defendant had with witness about six months before the trial, and related to an incident that occurred in another state, more than eight years before, and which merely im
It is equally well settled that the court may in its discretion permit a witness on cross-examination, including a defendant in a criminal case, to be interrogated as to. specific, extraneous offenses and conduct calculated to degrade him, and thus impair his credibility as a witness. But in every such case the party propounding the interrogatory is bound by the answer the witness gives, and will not bo permitted to introduce substantive evidence to contradict it. Hinkle v. State, 157 Ind. 237; Stalcup v. State, 146 Ind. 270, 275; Ford v. State, 112 Ind. 373, 384; Gillett, Indirect & Collat. Ev., §91. In another sense the testimony was, in effect, an impeachment of the defendant’s moral character by a specific act of immorality which is not allowed. Griffith v. State, 140 Ind. 163, 166, and cases cited. In any view we may take of the evidence, its admission was erroneous. There was other evidence tending to prove that the defendant was of a lecherous and dissolute disposition, and this particular statement claimed to have been addressed to a girl but fourteen years of age, late in the evening, while being conveyed by him in his buggy, is of a character greatly to prejudice the defendant before the jury. Grave as the crime of
Judgment reversed.
Monks and Dowling, JJ., dissent.