State v. Kern

26 N.E. 1076, 127 Ind. 465, 1891 Ind. LEXIS 235

Opinion

Elliott, J.

This appeal is prosecuted by the State, and counsel assume that the record presents questions of law upon the refusal to give instructions asked by the State, but we can not regard this assumption as valid.

There is no statement in the record showing that the instructions were relevant to the evidence, and hence no question of law is presented for decision. Without some statement of the evidence we must presume that the instructions were refused, because there was no evidence to which they were applicable. While it is true that it is neither necessary nor proper in appeals by the State to set forth the evidence in full, it is also true that there must be some statement in the bill of exceptions showing that there was evidence to which the instructions were relevant. It is a familiar rule of appellate procedure that the court will not decide mere .abstract questions, and where there are no facts stated only abstract questions can, in siích a case as this, arise upon a ruling refusing instructions.

Filed March 17, 1891.

Judgment affirmed.