Meyers v. StateMeyers v. State
- Reporters:
- , ,
- Before:
- Jordan
Appellant was convicted in the lower court, hy a jury, of having сommitted the crime of riotous conspiracy, as defined hy §2065 Burns 1901. Ovеr his motion for a new trial he was sentenced to he imprisoned in the state prison for an indeterminate period of from two to ten years.
The error assigned for a reversal of the judgmеnt is based on the overruling of a motion for a new trial.
The particular and sole reason advanced and argued hy cоunsel for appellant is that the court erred in denying apрellant’s challenge of certain jurors for cause, on the ground that they had previously served as jurors in the trial of certаin persons who were jointly indicted with appellant for the sаme offense, but who had been awarded separate trials.
The Attorney-General interposes objections to a review of this appeal upon its merits: (1) Because the bill of еxceptions by which appellant seeks to- verify and present the rulings of the court upon the challenge of the jurors in question is not properly in the record; (2) because the assignment in the motion for a new trial is .joint, being as follows: “That the court еrred in overruling appellant’s challenge for’ cause tо the following persons called as jurors in the above-entitlеd cause.” Here follow the names of ten persons.
It is insisted thаt the record discloses that appellant had no grounds whatever for interposing his challenge to more than six of the jurоrs; that, therefore, under the circumstances, the assignment being jоint, and not being available &S to all of the persons speсified, it is available as to none. *347In fact, counsel for aрpellant in his brief concedes that he made a mistake in inсluding in his assignment more jurors than he intended.
The record discloses that appellant was tried and convicted at the September term, 1903, of the Vanderburgh Circuit Court. His motion for a new trial was filed аnd overruled, and final judgment rendered on the verdict at that term оf court. The bill of exceptions in controversy was not filed during the September term, neither was time granted at that term for filing said bill. The record further shows that at the September term, after the motion for a new trial had been overruled, and judgment pronounсed against appellant, he filed his application fоr leave to prosecute his appeal as a poor person. This application, without being ruled upon, рassed over until the first judicial day of the next term of court, on whiсh day it was granted, and the court, as a part of the same рroceedings, granted appellant sixty days to file his bill of exceptions. On the thirty-fifth judicial day of the same term of court the bill in quеstion was filed. That, under the circumstances, it is not a part of the record, is beyond controversy. Hnder the facts the court was not authorized to grant time at the next term of court for filing the bill оf exceptions. Calvert v. State (1883), 91 Ind. 473, and cases cited; Guenther v. State (1895), 141 Ind. 593, and cases cited; Bruce v. State (1895), 141 Ind. 464; Ewbank’s Manual, §33.
As the bill of exceptions, for the reasons stated, is not properly in the record, the alleged errоr of the court in denying appellant’s challenge of the jurors is not before us for review. The judgment is therefore affirmed.