132 Ind. 315 | Ind. | 1892
— The appellant was indicted in the Owen Circuit Court for the alleged crime of assault and battery with
It appears from the clerk’s entry, signed by the presiding judge, that twelve jurors were empanelled to try the cause. As we have seen, it was assigned as one of the causes for a new trial that two of the jurors so empanelled were discharged by the court while the trial was in progress, but no reference is made in the motion for a new trial to any affidavits in support of the charge. Thirty days’ time was given by the court in which to file a bill of exceptions. The bill filed contains the following language :
“ Be it remembered that, on the 18th day of January, 1892,the same being the nineteenth day of the December term, 1891, of this court, the following pleas and proceedings were had before the Hon. George W. Grubbs, sole judge of said court. The defendant filed his motion and reasons for a new trial, which motion and reasons are as follows (see transcript from page 9 to 17, inclusive), which motion and reasons for a new trial said court overruled, to which ruling of the court the defendant at the time excepted.”
There is on the pages referred to in the record a copy of
This affidavit., not being embraced in the bill of exceptions, can not be considered by us. We have no means of knowing that it was ever presented to the court in support of the motion for a new trial, or that the court ever saw it. To authorize us to consider it, it should be embodied in a proper bill of exceptions signed by the judge. Meredith v. State, 122 Ind. 514; McClure v. State, 116 Ind. 169; Wood v. Crane, 75 Ind. 207; Stott v. Smith, 70 Ind. 298; McDonald v. State, 74 Ind. 214.
There being no affidavit properly in the record supporting this reason for a new trial, we must assume, in favor of the action of the circuit court, that it did not in fact exist.
Judgment affirmed.