Kennedy v. State

37 Ind. 355

• Court: Indiana Supreme Court
• Decided: November 15, 1871
• Status: Published

Opinion

Pettit, J.

This was an indictment for an assault and battery, with intent to murder one David Hoover.

Plea of not guilty; trial by the court; finding of guilty; imprisonment for eight years, and one dollar fine and costs; motion for a new trial overruled; and judgment on the finding.

K. M. Hord, A. Blair, T. Hochnon, and L. Hackney, for appellant. N. T. Carr and B. W. Hanna, Attorney General, for the State.

The errors assigned are, first, in not granting the appellant a postponement of his cause for six hours, as asked for by him, to prepare for his defence; second, in refusing to allow the appellant to file additional affidavits in support of his motion for postponement; third, in refusing the appellant a change of venue; fourth, in refusing to allow the appellant to file additional affidavits in support of his motion for a change of venue; fifth, in overruling the appellant’s motion for a new trial.

There is no affidavit or other paper in the record, by bill of exceptions, in relation to the first, second, third, and fourth assignments of error; and they are not properly or legally parts of the record, unless made so by bill of exceptions, nor can this court take notice of them, although the clerk may have copied them into the transcript. We will not cite authorities, but we refer the curious inquirer on this question to the Digests and Reports of our own State, from which we believe he will be fully satisfied as to the correctness of this ruling.

This leaves remaining the sixth, that of overruling the motion for a new trial) for consideration. The evidence is-set out in the bill of exceptions, and it consists of the testimony of one man, the injured party. It is clear, conclusive, and leaves not a doubt on our minds of the correctness of the finding and judgment of the court below.

The judgment is affirmed, at the costs of the appellant.

*

Petition for a rehearing overruled.