State v. Deas

The opinion of tlie Court was delivered by

Poci-iá, J.

The record contains numerous grounds of'complaint by tbe - defendant, who was convicted of perjury, but two questions only are discussed by bis counsel on appeal.

The others are very trivial and are therefore abandoned.

In a motion for a new trial, tbe accused urges two grounds of misconduct of the jury, one of which is not pressed on appeal.

Tbe ground which bis counsel discuss is that tlio district judge, allowed the foreman of the jury to step out of the ranks of his fellows up to the judge’s seat, and that he then asked and obtained in private-an instruction touching the case in hand.

The record contains a considerable mass of testimonjr which was taken on that point. But it is not embodied in, legally connected with, or even referred to, a hill of exceptions to the ruling of the district judge refusing the new trial prayed for. Hence, it cannot he considered.

The only attempt made by defendant’s counsel toward drafting a bill, of exceptions from tbe judge’s refusal of the new trial prayed for, is in the following words:

“ To the judgment of the court overruling this motion for a new trial-accused excepted, and tenders his hill for signature and approval.”

The reasons of the judge on his refusal of1 the motion, which were-given at length and in writing, are not even embodied in, attached or referred to, the purported hill. We can but express our surprise at tbe apparent hope of counsel that we could sanction sucli glaringly deficient proceedings, '

Repeated adjudications of this Court should have taught them the-proper and only course to pursue in the premises. In Nelson’s case, 32 Ann. 842, we culled from our jurisprudence and we formulated the-rule that “This Court cannot take cognizance of the evidence upon which a motion for a new trial was refused by the- court a qua, unless that evidence is embodied in a hill of exceptions.”

The doctrine was immediately thereafter applied in the ease of Given, 32 Ann. 782, in which we took occasion to say:

“Evidence to show the alleged misconduct of the jury was introduced and taken down in writing, and is in the record, hut it is- not embodied in, or attached to, a bill of exceptions,” and under the authority of the Nelson case we declined to consider the evidence.''

*583Tlio same rule received similar application in the following cases: State vs. Williams, 36 Ann. 742; State vs. Jackson, 36 Ann. 769; State vs. Belden, 36 Ann. 824.

We are therefore stripped of all power to consider or jiass npon the alleged misconduct of the jury.

On appeal, and for the first time, defendant’s counsel make the point that one of the deputy sheriffs in charge of the jury committed the grievous wrong of conversing with some of the jurors about the merits of the case on which they were then deliberating.

But tbe simple statement that the point was made only on appeal is sufficient to dispose of the matter. To pass on a point which lias not been submitted to the trial judge, would be assuming original jurisdiction. This wo have not tho power and much less the disposition to do.

The defendant has had a fair trial.

Judgment affirmed.