Miller v. State , 89 Ind. App. 530 ( 1929 )

Appellant was prosecuted on an affidavit charging sale of intoxicating liquors, in violation of § 4 of the Prohibition Act (Acts 1925 p. 144, § 2717 Burns 1926). Trial resulted in a verdict and judgment of guilty. Overruling motion for new trial is assigned as error.

In support of his contention that the trial court erred in overruling his motion for new trial, appellant relies on specifications in the motion which require an examination of the evidence. It is contended by the State that the questions sought to be presented cannot be considered for the reason that the bill of exceptions containing the evidence is not in the record.

It appears from the record that the motion for new trial was overruled and judgment rendered December 8, 1928, same being the sixth judicial day of the December, 1, 2. 1928, term of the Dekalb Circuit Court, on which day an appeal was prayed. There is, however, no order-book entry showing that time was given beyond the term for the filing of the bill of exceptions. It further appears from the record that the bill of exceptions containing the evidence was filed February 4, 1929, the first judicial day of the February, 1929, term of the court. The bill itself does contain a recital that it was filed by appellant "within the time allowed by the court for filing his bill of exceptions," but it has repeatedly been held by the courts of appeal of this state that such a recital, in the absence of an order-book entry showing that time was given beyond the term, is insufficient to bring the evidence into the record.Moore v. State (1923), 196 Ind. 299, 141 N.E. 638;Flannigan v. State (1922), 192 Ind. 662, 137 N.E. 179;Mikesell v. South Bend Electric Co. (1902), 29 Ind. App. 686, 65 N.E. 11. The evidence is not in the record, and the alleged errors are not presented.

Affirmed.