56 Ind. 51 | Ind. | 1877
This was a prosecution for bastardy, by the relatrix of the appellee, against the appellant, as defendant. The prosecution was commenced before a justice of the peace of Boone county, Indiana, and. from the justice’s decision and judgment, which was in favor of the appellant, “ the plaintiff prayed an appeal ” to the court below, which appeal was granted.
In the court below, the appellant moved the court to dismiss the appeal, which motion was overruled, and the appellant excepted. The cause was then tried by a jury, in the court below, and a verdict was returned, to the ef
Upon written causes filed, the appellant moved the court below for a new trial, which motion was overruled, and the appellant excepted. And judgment was rendered upon the verdict, and the court below ordered, that the appellant pay to the relatrix of the appellee, for the maintenance of said bastard child, a certain sum of money, in certain instalments. From this judgment of the court below, this appeal is now here prosecuted.
In this court, the appellant has assigned the following alleged errors:
1st. The courtbelow erred, in excluding competent evidence, offered by the appellant;
2d. The court below erred, in admitting incompetent and irrelevant evidence, on behalf of the appellee ;
3d. The court below erred, in refusing to require the appellee’s relatrix to answer certain proper and material questions, propounded to her by the appellant on the trial;
4th. The court below erred, in overruling appellant’s motion to dismiss the appeal of this cause from the justice;
5th. The court below erred, in continuing this cause, over the appellant’s objections; and,
6th. Thefcourt below erred, in overruling the appellant’s motion for a new trial.
Ve will consider and decide the questions presented by these alleged errors, in their order. And,'in so doing, the first three of these alleged errors may well be considered together. The matters stated in these three errors, if they had been properly assigned as causes for a new trial, in terms sufficiently certain and specific, in appellant’s motion for such new trial, addressed to the court below, would have presented questions for our consideration, which might very possibly have resulted in the reversal of the judgment. These ' matters, if they existed and were wrong, were errors of law occurring at the trial; and such errors, if excepted to, constitute the eighth stat*
The fourth alleged error is, that the court below erred, in overruling appellant’s motion to dismiss the appeal of this cause from the justice. It is doubtful if the record of this cause fairly presents this alleged error, as the appellant’s motion to dismiss, the decision thereon, and the exception thereto, were not made part of the record by bill of exceptions. But assuming, in this case, that the question is properly presented, we can not hold that the court below erred, in refusing to dismiss the appeal of this cause from the justice of the peace. Appellant’s motion to dismiss the appeal does not state any reason for such dismissal; but we do hot doubt that the assumed reason was, that, in a prosecution for bastardy, an appeal would not lie from the judgment of a justice to the circuit court of his county. It is true, that our statute regulating prosecutions for bastardy does not contain any express provision for an appeal by the State from the judgment of a justice in favor of the defendant. But it has been held by this court, that a prosecution in bastardy is a civil proceeding. The State, ex rel., etc., v. Evans, 19 Ind. 92. In the third section of the bastardy act, it is provided, that in such prosecutions “ the rules of evidence shall be the same as in civil cases.” 2 R. S. 1876, p. 655. And the sixth section of said act provides, that the trial of such prosecutions, both before the justice and in the circuit court, shall in all respects, not otherwise provided for
In our opinion, under the law of this State, the State may appeal from an adverse judgment of a justice, in a prosecution for bastardy, to the circuit court of the county; and, therefore, no error was committed by the court below, in overruling appellant’s motion to dismiss the appeal in this cause.
The court below erred, in continuing this cause over the appellant’s objection, is the fifth alleged error assigned by the appellant. The continuance of causes in the lower coui’ts must be left, of necessity, very largely to the dis
The sixth and last alleged error, assigned by appéllánt, is the decision of the court below, iii overruling his motion for a new trial. The Only causes for a new trial, assigned in appellant’s motion theréfor, were, that the verdict was not sustained by sufficient evidence, and that it was contrary to law.
It appears from the fefcord of this cause, that, after thé jury had been duly sworn to try the 'cause, “Joseph W. Breckenridge, short-hand reporter, is now duly sworn to report the evidence in this cause.” Thé clerk of thé court below has inserted, in the transcript of the record in this case, a manuscript certified by said Breckenridge to be a verbatim report of all the evidence given in said cause. We suppose, that this short-hand reporter was employed by the pai-ties, or one of them, “to make a Verbatim report of the evidence” in this cause, although the record fails to show, that the parties, or either of them, employed said reporter to make such report. This proceeding seems to have been had under the terms of
■In. the first section of this act, it is provided, among other things, that, .on appeal • to; this court, the clerk of the court below may certify the original long-hand mantiscript of • evidence, “when the same-shall have been incorporated in a bill of exceptions,”'to this court, instead of a transcript of sueh evidence. In the case at ' bar, the clerk of- the-' court below has certified to this court what purports to be the original' long-hand manuscript of the evidence, on the trial- of this cause; and this manuscript, although not signed nor authenticated, in any manner, by the judge of the court below, is endorsed, “ G-eneral bill of exceptions.” A proper inquiry, therefore, is presented, what is a bill of exceptions ? In 1 Burrill Law Diet., pi 205, a bill of exceptions is 'thus defined; “A formal statement in writing, of exceptions taken to the opinion, decision or direction of a judge, delivered during the -trial of a cause; setting forth the proceedings on the trial,-the opinion or decision given, and the exception taken thereto; and sealed by the judge in testimony of its correctness.” This definition is in strict harmony with the provisions of the 346th section of our code of practice, which, as we construe it, makes the signature of the judge an indispensable part of a bill of exceptions. The long-hand manuscript of the evidence, taken by a shorthand reporter, can only be certified to this court, as a part of the record,-under the statute, “when the same shall have been incorporated in a bill of. exceptions.” The manuscript of the evidence, in this case, was not incorporated in a bill of exceptions, and therefore it forms no part of the record of this cause. And, the evidence not being properly in the record, of course no question is presented for our consideration by the sixth alleged error.
The judgment of the court below is affirmed, at the costs of the appellant.