Parker v. State, No. 9,467

No. 9,467 | Ind. Ct. App. | Feb 25, 1916

Moran, J.

The question before us at this time arises on an application for a writ of certiorari. A history of the proceedings antedating the filing of this application is necessary to an understanding of the questions here presented. On September 8, 1915, an affidavit was filed with the clerk of the juvenile court of Marion County, Indiana, charging the appellant with the crime of unlawfully encouraging the delinquency of one Delilah Wells, a girl under the age of sixteen years, pursuant to §1648 Burns 1914, Acts 1907 p. 266. Such further steps were taken that a trial was had in the juvenile court of Marion County and, on October 23, 1915, appellant was found guilty by the court of the crime charged, and in addition to a fine, he was sentenced to the Indiana State Farm for six months. On October 25, 1915, a motion for a new trial was filed, and on November 2, 1915, the same was overruled by the court, and, on the following day an appeal was prayed to this court, bond filed and approved. On November 19, 1915, the juvenile court filed its special finding of facts, as provided by statute (§1635 Burns 1914, Acts 1907 p. 221), to which appellant excepted and was granted fifteen days’ time in which to prepare and file a bill of exceptions containing the evidence. On November 22, 1915, a transcript of all the proceedings had in the juvenile court up to that date was filed in this court, which transcript did not contain a bill of exceptions containing the evidence. On November 29, 1915, a transcript of the evidence was filed with the trial court, and on January 12, 1916, the same was settled; signed and filed by the court, thereby becoming a bill of exceptions. To bring this bill of exceptions into the record, together with certain order book entries made and corrected since the transcript was filed in its ^present form is the relief sought by the application for a writ of certiorari.

The section of the statute (§1635 Burns 1914, supra), authorizing an appeal to this court provides among other things that the party appealing shall file a transcript in the office of the clerk of the Supreme Court within thirty days from the .date of the rendition of the judgment appealed from, and in this connection it became the duty of the juvenile court to certify the facts in the form of a special finding, and in ease the party appealing desired to question the sufficiency of the evidence to warrant the finding thus made, the evidence should have been incorporated into a bill of exceptions filed in the juvenile court and made a part of the record. The judgment of conviction was entered of record as we have seen on October 23, 1915, and under the statute appellant had thirty days from this date to perfect his appeal, and with this statute in mind, he filed a partial transcript of the proceedings, together with an assignment of error, in the office of the clerk of the Supreme Court, on November 22, 1915. The bill of exceptions containing the evidence was not on file with the clerk of the juvenile court on this date, as he so states in his certificate attached to the partial transcript of the proceedings. The application, so far as it relates to the bill of exceptions containing the evidence is' not_ to send up a corrected entry, nor to cure an infirmity in the proceedings growing out of a mistake or inadvertence on the part of the clerk or the court, or by reason of any fraud being .practiced upon appellant; but to send up the entire bill of exceptions containing the evidence filed, as aforesaid, after the time had elapsed for perfecting the appeal. A writ of certiorari can not be made to serve this purpose. The time in which to perfect an appeal is jurisdictional. Elliott, App. Proc. §111.

The difficulty here seems to have been by reason of the lack of time in which to get the transcript of the evidence to the trial court, as the statute allows but thirty days in which to perfect an appeal in this class of cases. It is true that appellant’s counsel contends that he did not know that he would desire a transcript of the evidence until the juvenile court filed its special findings of facts, which was twenty-five days after the. rendition of the judgment, leaving but five days to have the transcript of the evidence prepared, settled, signed and incorporated in a bill of exceptions. We are not unmindful that in the denial' of the writ, it denies appellant a right of review of his cause so far as it relates to the question that he desires to present on the evidence. Regardless of the views.of the court, however, it is not within our province to remedy hardships • which grew out of statutory enactments. These are matters which may with propriety be addressed to the lawmaking body of the State. All the relief that appellant asks is addressed to the bill of exceptions and the entries connected therewith. The application for a writ of certiorari is denied.

Note. — Reported in 111 N.E. 631" court="Ind. Ct. App." date_filed="1916-02-25" href="https://app.midpage.ai/document/parker-v-state-7067071?utm_source=webapp" opinion_id="7067071">111 N. E. 631. See.12 Cyo 802; 6 Cyo 763.