Walker v. State

Appellant, having been convicted of violating the Prohibition Law, appeals, and contends the court erred in overruling his motion to quash the affidavit, and in overruling his motion for a new trial.

The affidavit, following the language of the statute, (§ 2717 Burns 1926, § 4, Acts 1925 p. 144) charged appellant with the unlawful possession of intoxicating liquor, and is 1. sufficient to withstand the motion to quash, which was based upon the insufficiency of the facts to state a public offense.

Appellant contends the court erred in overruling his motion for a new trial, and insists: (1) That the decision of the court is not sustained by sufficient evidence; and (2) error in the admission of evidence.

Appellee in its brief calls attention to the condition of the record, and insists no question is presented as to the overruling of the motion for a new trial, because the evidence is not 2. in the record. This contention of the State is well taken. On page nineteen of the record, the clerk certifies that the general bill of exceptions containing the evidence was filed in his office December 14, 1927. On page twenty, is a certificate signed by the judge, in which he certifies that the "above and foregoing longhand transcript of the evidence" and bill of exceptions was tendered to him for his signature January 23, 1928, and that the same was signed by him on that day. Following this is another certificate of the clerk in which he again states that said bill of exceptions was filed in his office December 14, 1927. This is followed by what purports to be a transcript of the evidence certified to by the reporter, and a certificate of the clerk, wherein he certifies that the same was filed in his office December 14, 1927. It is unnecessary to cite any authorities in support of the statement that the evidence is not in the record, but see Fairbanks v. Warrum (1914), 56 Ind. App. 337, 104 N.E. 983, 1141.

A lawyer who essays to appeal a case to the Supreme or Appellate Court should remember that it is his duty to see that a proper transcript of the proceedings is prepared. This is a 3. matter that cannot with safety be left to the care of the clerk of the trial court.

Judgment affirmed.