Moore v. State , 198 Ind. 547 ( 1926 )

ON PETITION FOR REHEARING. In his original brief, counsel for appellant complained of an alleged error in giving instruction No. 19, as copied in that brief from the original transcript. But the return to a writ ofcertiorari disclosed that the instruction which the court really gave told the jury that if Sam Beach and Joe Beach were found to have been guilty of the felony charged, "and if you further find from the evidence beyond a reasonable doubt that the defendant, Cleve Moore, did before the committing of said felony * * * unlawfully and feloniously counsel, encourage, hire orcommand the said Sam Beach and the said Joe Beach to do and commit said felony, then you are instructed that you should find the defendant, Cleve Moore, guilty," etc., and that in a proceeding to correct the record below, the trial court found the words above italicized to have been part of the instruction given, but to have been omitted from the instruction as set out in the bill of exceptions obtained by appellant and copied into appellant's brief, and that the bill of exceptions was thereupon corrected accordingly by a proper decree. After the return to the writ of certiorari had been made, appellee filed a brief in which was set out the fact that the bill of exceptions had been so corrected, and that the instruction complained of really was not erroneous in the particulars complained of. The return to the writ also showed that counsel who represent appellant in this court appeared for him in the trial court, resisted the application to correct the record, and, on his behalf, reserved exceptions to the filing of the application to correct it, and also to the ruling of the court sustaining the motion and ordering that the record be corrected.

Under these circumstances, counsel was bound to know that the transcript as amended by certiorari "imports absolute verity," and must be accepted as true by the Supreme Court in 12, 13. deciding the appeal. Ewbank's Manual, (2d ed.) §§ 208, 210, 211. And in filing this petition for rehearing, it was his duty to familiarize himself with the corrected transcript, and with the briefs of the adverse party reciting the instruction as it was shown by the corrected transcript to have been given to the jury, and to know that the Supreme Court would decide the case on the assumption that instruction No. 19 was given in the words set out in appellee's brief, especially as appellant did not file a reply brief controverting any of the statements in his adversary's brief. Rule 22, cl. 5, Supreme Court; Milburn v. Phillips (1893), 136 Ind. 680, 699, 36 N.E. 360; Elliott, Appellate Procedure § 443; Ewbank's Manual (2d ed.) § 181a.

The petition for a rehearing is overruled.