Alvey v. State

• Decision Date: 28 January 1936
• Docket Number: No. 15445.,15445.
• Citation: 199 N.E. 432,101 Ind.App. 391
• Parties: ALVEY v. STATE.
• Court: Indiana Appellate Court

101 Ind.App. 391

199 N.E. 432

ALVEY

v.STATE.

No. 15445.

Appellate Court of Indiana, in Banc.

Jan. 28, 1936.

Appeal from Juvenile Court, Marion County; L. Russell Newgent, Judge pro tem.

Herbert L. Alvey was convicted of contributing to the neglect of a child, and he appeals.

Affirmed.

Rochford & Rochford, of Indianapolis, for appellant.

Philip Lutz, Jr., Atty. Gen., Joseph P. McNamara, Deputy Atty. Gen., and Henry R. Wilson, Jr., Asst, Atty, Gen., for the State.

WIECKING, Judge.

The appellant was charged by an affidavit with contributing to the neglect of a child, to which affidavit the defendant pleaded not guilty. The cause was submitted to the court for trial. The finding of the court was that the appellant was guilty as charged in the affidavit, and the judgment of the court was that the appellant be fined in the sum of $50 and that he be imprisoned in the Indiana State Farm for a period of one hundred eighty days. The appellant filed his motion for new trial, which was overruled by the court, and now prosecutes this appeal, assigning as error (1) that the decision of the juvenile court is contrary to law; and (2) the juvenile court erred in overruling appellant's motion for new trial.

[1] The only proper assignment of error presented is that the decision of the juvenile court is contrary to law. Parker v. State (1916) 63 Ind.App. 671, 113 N.E. 763;Heber v. Drake (1918) 68 Ind.App. 448, 118 N.E. 864.

[2] The first proposition discussed by the appellant is with regard to the failure of the prosecuting attorney to indorse the words “approved by me” upon the affidavit in the court below. Without discussing whether or not such failure would be sufficient to compel the affidavit to succumb to a motion to quash below, it is well settled that such question cannot be raised for the first time on appeal in this court. Robinson v. State (1912) 177 Ind. 263, 265, 97 N.E. 929;Hicks v. State (1916) 185 Ind. 223, 113 N.E. 722;Tow v. State (1926) 198 Ind. 253, 151 N.E. 697;Knapp v. State (1932) 203 Ind. 610, 181 N.E. 517.

The appellant cites in support of his contention the case of Pease v. State (1921) 74 Ind.App. 572, 129 N.E. 337. In that case the appellant was tried on a complaint and not on an affidavit, and the question here presented was not involved.

[3] By his third, fourth, and fifth points, the appellant questions the sufficiency of the court's special finding of facts. We do not find the court's special finding of facts set out any place in the brief of the appellant. Therefore no question is presented to this court upon such special finding of facts by the court. Rule 21 (clause 5), Rules of the Supreme and Appellate Courts; Reeves & Co. v. Gillette (1911) 47 Ind. App. 221, 94 N.E. 242;Todd v. Crail (1906) 167 Ind. 48, 77 N.E. 402. Where such finding is not set out in appellant's brief, this court will presume that the juvenile court found all the facts necessary to...