OPINION ON PETITION FOR WRIT OF CERTIORARI.
[January 20, 1930.] Application is made to this court in the above-entitled cause for a writ of certiorari. In the petition for the writ it is shown that "the original bill of exceptions" in this case contains the longhand transcript of the evidence, the objections, exceptions and rulings thereon, the irregularities of the proceedings set out and assigned in the motion as grounds for a new trial, all the instructions given by the court on its own motion, and instructions tendered by defendant and refused "as well as the instructions given at the request of the defendant."
It is further made to appear that appellant's motion for a new trial was overruled. The reasons assigned in the motion are predicated upon remarks, comments and statements made by the court during the hearing of evidence which petitioner herein has denominated "irregularities," the giving of certain instructions by the court upon its own motion, the refusal of the court to give certain instructions tendered by defendant, newly discovered evidence, verdict contrary to law, and insufficient evidence to sustain the verdict. Furthermore, that doubt has arisen in the minds of the attorneys for appellant as to whether the questions on "irregularities" of the court and the instructions can be considered by this court as they now appear in the transcript on appeal. "Wherefore, the appellant prays that a writ ofcertiorari issue from this court to the clerk of the Gibson Circuit Court commanding him to transmit within 60 days a copy of the original bill of exceptions to this court under certificate and seal of the Gibson Circuit Court, and that the record in this case be withdrawn and placed in the hands of the clerk of the Gibson Circuit Court for a *Page 174 sufficient time to enable him to make and deliver said certified copy."
Rule 34 of the Supreme and Appellate Courts provides that "applications for certiorari . . . shall clearly designate the parts of the record asserted to be defective, improperly omitted, or improperly incorporated in the transcript."
As we understand the petition herein, the relief asked is not to meet any of the purposes mentioned in the above rule, but for an order requiring the clerk to copy the original bill 13-15. of exceptions and certify the same to this court. If we are correct in the object intended by the writ, no purpose will be subserved by having it copied, as an original bill may be incorporated in the transcript of the record on appeal as a part thereof, regardless of "whether such original bill or copy thereof be specified in the praecipe." Acts 1905 p. 584, § 289, as amended, Acts 1915 p. 122, § 2332 Burns 1926. The longhand manuscript of the evidence and matters directly connected therewith, when put in the form of a bill of exceptions and filed in the trial court, as provided in Acts 1897 p. 244, § 1, § 691 Burns 1926, become a part of the record of the case in that court, but, by virtue of the above code provisions, it is made the duty of the clerk on request to embrace such bill in and certify it as a part of the transcript on appeal to the Appellate or Supreme Court without being copied. Curless v. State (1909), 172 Ind. 257, 267, 87 N.E. 129, 88 N.E. 339. It is the only original part of the record of the court below so authorized to be used. Mitchell, Exr., v. Beissenherz (1922),192 Ind. 587, 135 N.E. 885.
Appellant has referred to Acts 1903 p. 338, § 7, § 692 Burns 1926, but that section is not helpful to him, for the 16. reason it applies alone to civil procedure. Curless v. State, supra.
Sections 691 and 2332, supra, are to be construed together, *Page 175 and, when thus considered, they clearly prescribe the procedure for making an original bill a part of the record of the 17. trial court. According to the petition, the original bill is here, and whether it be a copy or the original is immaterial. If the evidence offered and heard in this cause, and all rulings, objections, exceptions and matters directly connected therewith, including remarks, comments and statements made by the trial court during the hearing of evidence, are included in the original bill and properly certified to this court, and there is no showing in the petition that they are not, it is sufficient as a basis for the presentation to this court for review of all questions thus saved.
In order to bring to this court for review exceptions to the giving of instructions by the court upon its own motion, or the refusal of the court to give instructions tendered, it is 18. necessary that all of the instructions given and those refused be first made a part of the record below by a bill of exceptions, and that such bill be copied into the transcript filed in this court on appeal. McNaught v. State (1924),194 Ind. 209, 211, 142 N.E. 418; Palmer v. State (1926),198 Ind. 73, 78, 152 N.E. 607.
In this connection it might be well for us to remind counsel that instructions, whether given or refused, either in a civil or criminal case, have no place in an original bill of 19. exceptions. If they be so incorporated, they will be disregarded, but their presence will not affect matters properly embraced therein. Williams v. State (1908),170 Ind. 644, 85 N.E. 349.
Petition for writ of certiorari herein denied. *Page 176