¶1On Petition fob a Rehearing.
¶2This cause was reversed for error in striking out the answer of the defendant Stephenson.
¶3The answer was set out in a bill of exceptions.
¶4The appellee insists that the bill ought not to have been regarded as part of the record. He says it was signed upon condition, and he refers to Stewart v. Rankin, 39 Ind. 161, and Cluck v. State, 40 Ind. 263.
¶5In the first of these cases the bill of exceptions was signed by the judge in blank, and did not contain the evidence, and it appeared that the judge had never seen the evidence.
¶6It was therefore held that the evidence which had been copied by the clerk into another part of the record, and which was referred to in the bill of exceptions by the words “ see pages 18 to 28,” etc., was not part of the bill of exceptions, and was not properly in the record.
¶7In the second of the cases referred to, the bill of exceptions contained the statement, “this was all the evidence given in the cause,” followed by the direction “ insert reporter’s notes,” and ending thus, “ signed and sealed within the time allotted.” Signed by the Judge.
¶8“ It is agreed that the evidence, before this bill shall be of any effect, shall be revised and corrected by the attorney for the prosecution.” Signed by the Judge.
¶9The bill in this case was strongly criticised by this court, but it was not rejected, although a motion had been made to strike it from the record. The case was decided upon the evidence in said bill presented.
¶10There is no analogy between the case at bar and either of the foregoing cases.
¶11Here, the bill of exceptions was not signed in blank; it had no expressed condition that it should be “ revised and corrected;” it was signed by the judge; it contained all the ev*92idence; it was in the common form, and was shown to have been filed within the time allowed by the court.
¶12Under the date of it, are the words “to be agi’eed to by counsel',” then follows the signature of «the judge in its ordinary jilacc. In the absence of any evidence, the legal presumption is that the judge did his duty. There was no motion to reject this bill of exceptions.; if it was proper to consider the evidence in the case of Cluck v. State, supra, a fortiori it was proper to consider the evidence here; the mere existence upon the bill of the words above stated, without any proof as to the manner in which they were placed there, or as to their purpose, and without any showing that the bill was not agreed to by counsel, does not overcome the legal presumption that the judge did his duty and signed the bill, “ having convinced himself, either by the^ consent of opposing counsel, or by a personal examination, that it contained the truth.”
¶13The petition for a rehearing ought to be overruled.
¶14Per Curiam. — The petition for a rehearing is overruled.