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Stewart et aL v. The State.

aptly charges the appellants, also, with the commission of the mere misdemeanor which is defined, and its punishment prescribed, in section 2031, R. S. 1881. That section provides as follows: "Whoever aids or assists a person lawfully confined in any jail, workhouse, city prison, or other lawful place of confinement to escape therefrom or in an attempt to escape therefrom, * * * shall be fined not more than five hundred nor less than fifty dollars, and imprisoned in the county jail not more than one year nor less than three months."

By comparing the provisions of sections 2029 and 2031, -mpra, severally, with the language used in the indictment under consideration, it can not be doubted, as it seems to us, that it was intended to charge the appellants in such indictment with the felony defined in section 2029, supra, and not with the mere misdemeanor defined in section 2031, above quoted. We are of opinion, therefore, that the indictment herein is not bad for duplicity, and that appellants' motion to quash it on that ground was correctly overruled. Mills v. State, 52 Ind. 187.

The only other error properly assigned by appellants is the overruling by the court below of their motion to set aside the verdict herein. Under this alleged error it is first insisted, on behalf of appellants, that the trial court erred in refusing to give the jury, at their request, the following instruction:

"If you find from the evidence that Mollie Vancleave escaped from the county jail unassisted by the defendants, and that, after she had so escaped, she met the defendants, who accompanied her to another part of the city, where she got into a buggy and was driven off by one Van Buskirk, and that the defendants had nothing whatever to do for or with the said Mollie, in aid of her escape, until after she had so escaped, and had no previous knowledge that she intended to escape, then you must find for the defendants."

It may be that the trial court erred in refusing to give the Stewart ct al. r. The State.

jury the foregoing instruction, at appellants' request; but if it did, the error is not so saved in and presented by the record now before us as to be available to appellants for the reversal of the judgment. The evidence is not in the record, and, therefore, we can not and do not know that the instruction quoted was not properly refused upon the ground that it was wholly inapplicable to the case made by the evidence. In such a case it is well settled that we must presume, in aid of the decision below, that the instruction asked was not applicable to the case made by the evidence, and was, for that reason, properly refused. Louisville, etc., R. W. Co. v. Harrigan, 94 Ind. 245, and cases cited.

Again, it is not shown affirmatively by the record of this cause that it contains all the instructions given the jury by the court of its own motion. In such a case we must also presume, in support of the ruling complained of, that the record of this cause does not contain all of the court's instructions to the jury, and that the instruction above quoted was properly refused by the court below, because the law of such instruction had been given the jury by the court of its own motion and in its own language. The record must affirmatively overcome or exclude all such presumptions, or the ruling complained of, even though erroneous, will not beavailable here for the reversal of the judgment. This is well settled by the decisions of this court. Freeze v. DePuy, 57 Ind. 188; Myers v. Murphy, 60 Ind. 282; Bowenv. Pollard, 71 Ind. 177; Morris v. Stern, 80 Ind. 227; Town of Princeton v. Oieske, 93 Ind. 102; Frank v. Grimes, 105 Ind. 346; Beeknell v. Becfcnell, 110 Ind. 42.

The bill of exceptions, containing some of the instructions given by the court of its own motion, contains, also, the following recital or memorandum, to wit:

"Instruction No. 1, stating the law of the case, grade of punishment, and citing the statute under which the indictment was drawn, is lost from the files of the court."

Of course, the record of the cause filed here on this appeal Stewart et al. v. The State.

does not contain a transcript of "Instruction No. 1 " of tho court's instructions, nor any statement of its contents beyond what is contained in the recital or memorandum above quoted. It may be assumed, however, we think, from the language used by the court in its second instruction, given of its own motion, that in such " Instruction No. 1 " the court directed the attention of the jury to the provisions of both the sections 2029 and 2031, above quoted, of our statute "concerning public offences and their punishment;" for, in its second instruction, the court, of its own motion, charged the jury as follows:

"You will observe from these statutes, in case you find the defendants guilty as charged, you have a wide discretion in assessing the punishment; and these two sections may be considered as one section, prescribing grades of punishment."

Appellants' counsel earnestly insists "that either this instruction was erroneous or the indictment was bad; and we care not which horn of the dilemma appellee may take." In other words, appellants' counsel claims, as we understand the point he makes, that, if the instruction last quoted contains a correct statement of the law, the indictment herein is clearly bad for duplicity, in that it charges the appellants in a single count with the felony defined in section 2029, and with the misdemeanor defined in section 2031, above quoted. Conceding, without deciding, that the instruction under consideration is erroneous, it does not follow by any means that the error therein is of such a character as would authorize or justify the reversal of the judgment.

As we have seen, the appellants were charged in the indictment herein with the felony defined in section 2029, supra, and not with the mere misdemeanor defined in section 2031, above quoted. By the instruction we are now considering, the jury were told that, if they found appellants guilty as charged, they might in their discretion assess against the appellants the punishment prescribed for the misdemeanor merely in such section 2031 of the statute. If the court Stewart et al. v. The State.

erred, as claimed, in giving the jury this instruction, it is very certain, we think, that this error did not, and could not, in the nature of things, "prejudice the substantial rights of the defendants." In section 1891, R. S. 1881, of our criminal code, it is expressly declared that, "In the consideration of the questions which are presented upon an appeal, the Supreme Court shall not regard technical errors or defects or exceptions to any decision or action of the court below, which did not, in the opinion of the Supreme Court, prejudice the substantial rights of the defendant." In conformity with these statutory requirements and in obedience thereto, we must disregard the alleged error of the court below, if it be an error, in giving the instruction last above quoted, because such error, as we have already said, did not, and could not, in our opinion, "prejudice the substantial rights of the defendants" herein. This conclusion is in harmony with, and is sustained by, a number of our decisions. Clayton v. State, 100 Ind. 201; Trout v. State, 107 Ind. 578; Phillips v. State, 108 Ind. 406.

It is claimed on behalf of appellants, that the record fails to show their arraignment on the indictment herein, or that they entered any plea thereto. The order-book entry of the court below in the cause, appearing in the record, showed the arraignment of appellants upon the indictment herein, "and being each asked by the court whether he is guilty or not guilty, as therein charged, for plea thereto each says that he is not guilty." It was shown, also, on this subject, by bill of exceptions properly in the record, that " the court while in session directed Lee F. Wilson, Esq., the defendants' sole attornpy, to take said indictment, read it to the defendants and advise them of the contents and charge in said indictment, and see how they desired to plead thereto; and that said Wilson then took said indictment, read the same to the defendants, advised and consulted with the said defendants and returned into court; that the court thereupon said to Wilson, in the presence of the defendants, 'How do The Midland Railway Company v. Wilcox et al.

you plead to this indictment?' Whereupon said Wilson, in the presence of said defendants, then and there in open court, in response to said question of the court, replied: 'We plead not guilty;'" and that appellants were not otherwise arraigned on the indictment herein, and did not otherwise pleat1 thereto, except as stated in such bill of exceptions.

Upon the showing made in the bill of exceptions, it may be said that the arraignment of the appellants on the indictment herein was irregular and informal, but their plea thereto was properly entered by their attorney in their behalf. The cause was tried upon issues duly joined, and certainly there was no error in the arraignment of appellants, or in their plea to the indictment, which did or could, in our opinion, prejudice their substantial rights in this cause in the slightest degree.

In conclusion, we are of opinion that no error is so saved in and presented by the record of this cause as to authorize or require the reversal of the judgment.

The judgment is affirmed, with costs.

Filed Sept. 28, 1887.

No. 13,686.

The Midland Railway Company V. Wilcox Et Al.

Appeal Bond.Supreme Court can not Increase Penally.Solvency of Sureties. Change in Financial Condition.—The Supreme Court can not increase the penalty of an appeal bond as fixed by the trial court; nor will it interfere with the decision of that court as to the sureties' solvency and ability to pay, unless it is shown that there has been a change in the condition of the parties or sureties.

From the Madison Circuit Court.
Vol. 111.—36

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