56 N.E.2d 854 | Ind. | 1944
Upon an affidavit drawn under § 9-2804, Burns' 1942 Replacement, § 5698, Baldwin's 1934, appellant by a jury in a juvenile court was convicted of encouraging a boy to commit sodomy. In addition to the assignment permitted by § 9-2858, Burns' 1942 Replacement, § 1758-30, Baldwin's 1941, he assigns as error the overruling severally of his motion to quash the affidavit, his motion for change of venue from the judge, and his motion for a new trial in which is raised the question, among others, of the erroneous giving of the same instruction condemned as prejudicial error in Burris v. State (1941),
By each of the sections above referred to jurisdiction of this appeal is given to the Appellate Court. Anticipating that it, following a long line of its decisions, the latest of 1, 2. which is Akers v. State,
Ordinarily an appellate court does not consider a constitutional question unless by the ruling thereon in the lower court the party raising it has been prejudiced and unless further its decision is necessary to disposition of the appeal. So far, appellant has not been harmed. He is merely anticipating harm by the expected refusal of the Appellate Court to consider his assigned errors. But that court, applying the doctrine ofWarren v. Indiana Telephone Company (1937),
The cause is transferred to the Appellate Court pursuant to § 4-217, Burns' 1933, § 1362, Baldwin's 1934.
NOTE. — Reported in