62 N.E.2d 268 | Ohio Ct. App. | 1945
This is an appeal from a judgment of the Court of Common Pleas of Montgomery county, Ohio, Juvenile Court Division, finding that defendant is a delinquent child and committing her to the Girl's *336 Industrial School. The appeal is noted on "both the law and the facts" and apparently proceeds by a guardian ad litem appointed by the juvenile judge.
At the outset it should be said that this cause may not proceed as an appeal on questions of law and fact for the obvious reason that the action is not one cognizable in chancery at common law and will be considered as an appeal on questions of law. The type of appeal becomes immaterial because the question raised is one of law only.
The principal error assigned is the failure and refusal of the trial judge to sustain defendant's motion "to fix and allow her bond so that she may be released during the appeal of the cause."
We know of no constitutional provision, federal or state, which assures one committed to any institution the right to have bail bond fixed on an appeal from the sentence. If such a provision is made by statute, it is required only that it operate uniformly. See 16 Corpus Juris Secundum, 1277, Section 626. If no provision whatever is made whereby bail bond may be fixed by the trial court, no provision of the Constitution is violated. The Juvenile Court Code makes no specific provision for an appeal from an adjudication that a minor is a delinquent child. The right of appeal in such cases was unknown to the common law and is purely a creature of statute. 31 American Jurisprudence, 808, Section 44; Wissenburg v. Bradley, Judge,
If we assume that Section 13453-1, General Code, may be given application, there are at least two cases in Ohio which hold that the right to have execution of sentence suspended and bond accepted is within the sound discretion of the trial judge. SeeIn re Thorpe, *337
As there is no bill of exceptions which tends to show any abuse of discretion in refusing to fix bond, we have no basis upon which to predicate a finding that the appeal bond was improperly refused.
We are satisfied that there was no violation of any constitutional provision in the action of the court on the motion to fix bond, because of the fact that the Legislature has, by statutory enactment, if applicable to sentence in juvenile cases, provided the conditions under which, not only the trial court, but the reviewing court, may suspend execution of sentence.
We recognize the cogency and force of the argument advanced by counsel for defendant, both in oral presentation and in his brief, in support of his contention that the right to give bond should be accorded to a minor in juvenile cases, but this argument is met in part by the provisions of our Code, and if it is to be made mandatory that bond be accepted in all instances involving cases of juvenile dependency or delinquency, then the argument of counsel is more properly directed to the Legislature than to the courts.
We have discussed the only error which is presented and considered in the brief of defendant, but other errors are assigned in what is designated as "petition in error," namely, error in overruling defendant's motion for new trial, error in rendering judgment contrary to law, and other errors apparent on the face of the record.
No error is assigned which, in the absence of a bill of exceptions, is exemplified upon the record as it comes *338 to us. Orders in this court will be in accord with this opinion.
Judgment accordingly.
GEIGER and NICHOLS, JJ., concur.
NICHOLS, J., of the Seventh Appellate District, sitting by designation in the Second Appellate District.