Peacock v. State

174 Ind. 185 | Ind. | 1910

Hadley, C. J.

Appellant was convicted of wife desertion, under §2635 Burns 1908, Acts 1907 p. 75. His motions to quash the indictment and for a new trial were respectively overruled.

1. The only objection pointed out to the indictment is that it does not sufficiently charge that the desertion was felonious. The pertinent part of the indictment is as follows: “That Erastus Peacock, on November 5, 1907, at the county and state aforesaid, did then and there unlawfully and felon desert his wife, Florence Peacock, leaving her without reasonable means of support, she, said Florence Peacock, having never been guilty of adultery, or other vicious or immoral conduct.” The point made against the indictment is frivolous. It is manifest that the failure of the scrivener of the indictment to write fully the ivord “feloniously” is a mere clerical error, and could not have harmed defendant.

2. The only questions made under the motion for a new trial arise upon instructions given and refused by the court, and there are no such questions properly before us, because no instructions appear in the record by bill of exceptions. Donovan v. State (1908), 170 Ind. 123; Williams v. State (1908), 170 Ind. 642; Heath v. State (1910), 173 Ind. 296; Lucas v. State (1910), 173 Ind. 302.

Judgment affirmed.