Seibert v. State

166 N.E. 256, 89 Ind. App. 604, 1929 Ind. App. LEXIS 213

• Court: Indiana Court of Appeals
• Decided: May 10, 1929
• Docket: No. 13,667.
• Status: Published

Opinions

McMahan, P. J.

Appellant was convicted on a charge of drawing, and of threatening to use while drawn, a dangerous weapon, a revolver, upon the person of James Graves. The motion for a new trial was overruled February 1, 1928, judgment rendered on the verdict, and sixty days given for bills of exceptions. Notice of appeal was served on the prosecuting attorney and appellant admitted to bail pending appeal. The error assigned is the overruling of the motion for a new trial, under which appellant attempts to present the sufficiency of the evidence to sustain the verdict, error in the giving and refusing to give certain instructions, and error in the admission of certain evidence.

A determination of the questions so attempted to be presented calls for a consideration of the evidence, which appellee contends is not in the record. The record filed in this court contains an order-book entry to the effect that the bill of exceptions containing the evidence was filed in the clerk’s office March 2, 1928. In his certificate to the transcript, he also certified that it was filed in his office on that day. The judge certified that the bill of exceptions was presented to him March 2, 1928, for his approval, that the same was taken under advisement, and that it was approved and signed by him March 13, 1928, and was, on that day, ordered filed and made a part of the record. There is no showing that it was ever filed in the clerk’s office after it was signed by the judge. It follows that the evidence is not in the record, and since all the questions attempted to be presented depend on the evidence, no error is shown in the overruling of the motion for a new trial.

Affirmed.