151 Ind. 495 | Ind. | 1898
Appellee was indicted, tried, and acquitted of the charge of embezzlement. The indictment was based upon section 2031, Burns’ R. S. 1894 (Acts 1891, p. 395). The State has appealed, and has assigned numerous errors, calling in question the action of the court in giving and refusing to give instructions. So far as the record shows, the court was not requested to instruct the jury in writing, nor is it shown that all the instructions given were in writing. Bills of exceptions containing instructions given by the court, as well as instructions requested by appellant, which the court refused to give, were signed and filed in the court below; but it is not stated in said bills, or either of them, that all the instructions given by the court are set forth therein. On the contrary, it is affirmatively shown by one of the bills of exceptions that some of the written instructions given have been omitted from the record. When, in a criminal case, it is not affirmatively shown by the bill of exceptions that it contains all the instructions given by the court to the jury, this court must presume that such bill of exceptions does, not contain all the instructions given. Cooper v. State, 120 Ind. 377, 383, 384. In such case the presumption is that the substance of the instructions, asked was embraced in the instructions given by the'
In Robb v. State, 144 Ind. 569, complaint was made of misconduct of the prosecuting attorney in his opening statement to the jury, and this court held that it would presume that the trial court, in its instructions, withdrew any such misstatements of a prejudicial character, and directed the jury to disregard them, for the reason that all the instructions
In the case of Lower v. Franks, 115 Ind. 334, it was said that “the giving of a fatally erroneous instruction can only be cured by a plain withdrawal of such instruction, and the withdrawal of such instruction will not be presumed, but must be affirmatively shown,” citing a number of cases. In that case, however, it was held that the record showed that all the instructions given were in the record. Under such circumstances, where all the instructions given are in the record, the record must show that the fatally erroneous instruction was plainly withdrawn by another instruction. None of the cases cited in the case last named lend any support to the doctrine that, where all the instructions are not in the record, it must affirmatively appear that a “fatally” erroneous instruction was withdrawn; and, so far as Lower v. Franks may seem to hold such doctrine it was obiter dicta. The same may be said of all the cases, except Vancleave v. Clark, supra, which seems to hold that where all the instructions are not in the record it will not be presumed that a “fatally” erroneous instruction given was withdrawn by another instruction not in the record, but that such withdrawal must be affirmatively shown by the record. The general rule declared by the decisions of this court is that errors in instructions cannot be considered when all the instructions are not in the record. Hannan v. State, 149 Ind. 81; Hawley v. Zigerly, 135 Ind. 248, 249; Clanin v. Fagan, 124 Ind. 304, 305; Gallaher v. State, 101 Ind. 411; Musgrave v. State, supra, p. 313. In Pence v. Waugh, supra,—an action to contest a will,—the court instructed the jury that, to entitle the plaintiffs to recover they must prove both unsoundness of mind and undue influence. The court, in another
In Board, etc., v. Nichols, 139 Ind. 611, 619, this court said in regard to this question “Possibly if a charge were found to be so radically misleading and erroneous as not to be pertinent to any possible view of the case made by the pleadings or the evidence, and one which was so prejudicial that its evil effects could not be said to be withdrawn by any other charge, it might be considered, notwithstanding the absence of other charges from the record.” This is an express recognition of the rule that, when all of the instructions given are not in the record, it will be presumed, when necessary to sustain the judgment of the court below, that any erroneous instructions given were withdrawn, and the jury directed to disregard the same, but the court in the part of the opinion quoted goes further and intimates that an erroneous instruction might be so prejudicial that no instruction withdrawing the same could cure the error, and that in such case the erroneous instruction would be considered, although all the instructions given were not in the record. In Gallaher v.
It is also assigned as error that the court erred in refusing to admit in evidence the deed of assignment of the Bedford bank. Counsel for appellant have not called our attention to the page and line of the record where any such evidence was offered by the State, or where the court made any such ruling as that complained of. Eule twenty-six of this court requires the party asserting that a ruling of the trial court is erroneous to cite the page and line of the record where the same may be found, and it has been re