State v. Gebhardt

13 Iowa 473

• Court: Supreme Court of Iowa
• Decided: June 23, 1862
• Status: Published

Opinion

Baldwin, O. J.

The counsel for defendant assign as error the giving of certain instructions by the court, and the refusal and modifications of those asked by the defendant. Sections 4813 and 4814 of the Revision provide that the instructions given by the court, as well as those asked by counsel, shall be in writing, and signed by the judge and filed with the clerk. If instructions asked are given, or refused, or modified, they must be so marked and signed by the judge.

The record in this case fails to show that the instructions given or refused, were either signed, or made a part of the,. record, as thus provided.

The counsel of defendant, in their motion for a new trial, refer to the action of the .court in giving. and refusing certain instructions, and upon such ruling base their Application for a new trial, to the overruling of which motion defendant excepted, and a bill of exceptions is signed by the court, showing its ruling upon this motion. It does not appear, by the bill of exceptions, that the instructions wbicb are claimed to be erroneous were in any way made a part of tbe record. The counsel, it is true, state in their motion that certain instructions were given, and others refused; but the mere averment of counsel that certain rulings were made by the court, does by no means compel us to consider such averment as true. The law requires it to appear over the signature of the judge what instructions were given or refused, and we have no power to consider an instruction as either given or refused, unless it is so certified by the court.

Judgment affirmed.