76 Ind. 467 | Ind. | 1881
Lead Opinion
Information for forcible detainer. The information states, among other things, that, on the 10th day of April, 1879, the said Henry M. Endsley, at and in the county of Shelby aforesaid, did then and there, with menaces, force and arms, and without authority of law, with clubs and other offensive weapons, unlawfully, violently, forcibly,
The appellant made a motion to quash the information: and affidavit, which was overruled. The cause was submitted to a jury, who returned a verdict of guilty. The appellant made a motion for a new trial, which was overruled. He then moved in arrest of judgment, which motion was. also overruled, and judgment rendered upon the verdict. The rulings of the court upon these several motions are-assigned as errors.
It is insisted by the appellant that his motion to quash the-information and affidavit, and his motion in arrest of judgment, should have been sustained, for the reason that the word “dwelling-house,” as used in the information and affidavit, is not equivalent to the word “land,” as used in section 12 of the act defining misdemeanors. 2 R. S. 1876, p. 462.
In the case of Woodman v. Smith, 53 Me. 79, the court say : “A conveyance of a dwelling-house and out-buildings ‘belonging thereto’ conveys the out-buildings upon precisely the same principles by which it is held to convey the dwelling-house. In Davis v. Handy, 37 N. H. 65, it was-held that, under a description of a ‘ropewalk’ in a deed, such land of the grantor will pass as is exclusively devoted to the use of the ropewalk. In Wooley v. Groton, 2 Cush. 305, it was decided that, by the grant of a town pound, the land on which the same stood was conveyed, not as appurtenant but as a part of the subject matter. In Johnson v.
The word “dwelling-house” embraced the land on which it stood, and the charge of its forcible detention was equivalent to a charge of the forcible detention of the land on which it was standing. We think, therefore, that the motions to quash the information and affidavit, and in arrest of judgment, were properly overruled.
The ground upon which it is urged that the court erred in ■overruling the motion for a new trial is, that the evidence does ,not sustain the verdict.
There is a bill of exceptions in the record, purporting to •contain all the evidence, but it appears upon the face of the bill that it does not. It is stated in the bill of exceptions, that “the writ of restitution was then read in evidence, in the words and figures following, to wit.” The writ thus .read in evidence is not copied into the bill of exceptions at all. All the evidence cannot therefore be said to be in the record, where it thus appears upon the face of the bill of exceptions that it does not contain all the evidence. Morrow v. The State, 48 Ind. 432; Sidener v. Davis, 69 Ind. 336; Kimball v. Loomis, 62 Ind. 201; The Aurora Fire Ins. Co. v. Johnson, 46 Ind. 315; The Columbus, etc., R. R. Co. v. Griffin, 45 Ind. 369; The State, ex rel., v. The President, etc., 44 Ind. 350; Griffin v. Ransdell, 71 Ind. 440. Upon :such a bill of exceptions no question can be raised as to the' sufficiency of the evidence to sustain the verdict.
Exceptions were taken during the trial to the admission of evidence on the part of the State, and to the refusal to admit evidence offered by the appellant, but as no argument
The judgment below should be affirmed.
Per Cukiam. — It is ordered upon the foregoing opinion, that the judgment below be affirmed, at the costs of the appellant.
Rehearing
On Petition for a Rehearing.
The appellant earnestly insists that a rehearing should be granted in this case, for the reason that the court, as he contends, overlooked, in deciding the case against him, a material part of the record. If in this he is right, a rehearing should be granted.
The bill of exceptions says : “The writ of restitution was-then read in evidence, and is in these words and figures, to-wit.” The writ is notin the bill of exceptions ,nor is its appropriate place designated otherwise than bjr the words above quoted. In making up the record the clerk did not regard the language above set out, as a direction to him by the court, to copy into the bill of exceptions the writ, and he did not do it. Subsequently, upon a writ of certiorari, he certified to-this court the writ of restitution read in evidence on the trial of the cause. Did the writ, thus certified, become a part of the record?
It is provided by sec. 343 of the code, that “It shall not-be necessary to copy a written instrument or any documentary evidence into a bill of exceptions; but it shall be sufficient to refer to such evidence, if its appropriate place be designated by the words ‘here insert.”’
Aside from this provision, the bill of exceptions would have to contain all the evidence, both oral aud written. It-is only by complying with the statute, that the clerk can be authorized to insert in the bill of exceptions documentary evidence referred to in it. This bill of exceptions did not contain the direction to the clerk required by the statute,
In the latter case, Biddle, J., says : “By section 343 , it is made unnecessary to copy a written instrument or any documentary evidence into a bill. of exceptions, ‘ if its appropriate place be designated by the words “here insert;’” but in this case there is no such place designated wherein the evidence should be copied, and no reference in the bill of exceptions to the evidence thus omitted in any other part of the transcript. There is no authority, therefore, in the bill of exceptions, by which the clerk can copy therein the omitted evidence.”
The language of the bill of exceptions, “in the words and figures following, to wit,” can not be understood as a direc
It is also insisted by the appellant that this court will take judicial notice of the contents of the writ of restitution read in evidence in this case. We think this court can not judicially know the contents of the particular writ of restitution put in evidence in the case, because, as the appellant insists, the record shows that it was issued by a justice of the peace, and also shows the subject-matter of the suit and the parties to it. The words “writ of restitution” are not more significant than are the words “warranty deed.” It would hardly be contended, that, because the record in a case before this court showed the subject-matter in controversy and the parties to the suit, it could take judicial notice of the contents of a warranty deed read in evidence on the trial, and shown to have been executed by one of the parties to the other. The contents of the deed and of the writ can only be determined by the instruments themselves.
The petition for a rehearing ought to be overruled.
Per Curiam. — The petition for a rehearing is overruled.