Montgomery v. State

• Citation: 222 Ind. 606,56 N.E.2d 854
• Decision Date: 09 October 1944
• Docket Number: No. 27989.,27989.
• Parties: MONTGOMERY v. STATE.
• Court: Supreme Court of Indiana

222 Ind. 606

56 N.E.2d 854

MONTGOMERY

v.STATE.

No. 27989.

Supreme Court of Indiana.

Oct. 9, 1944.

Guy Montgomery was convicted of encouraging a boy to commit sodomy and appeals.

Cause transferred to the Appellate Court.Appeal from Juvenile Court, Sullivan County; Walter F. Wood, judge.

Paul P. Boyle and Norval K. Harris, both of Sullivan, for appellant.

James A. Emmert, Atty. Gen., Frank Hamilton, First Asst. Atty. Gen., and Frank E. Coughlin, Deputy Atty. Gen., for appellee.

PER CURIAM.

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, 218 Ind. 601,34 N.E.2d 298.

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 which is Akers v. State, Ind.App.1943, 51 N.E.2d 91, will consider itself bound by § 9-2858, supra, and refuse to consider these three assignments, he asserts that the section is unconstitutional as class legislation and by raising this question seeks to give us jurisdiction under clause ‘First’ § 4-214 Burns' 1933, § 1356, Baldwin's 1934.

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 of Warren v. Indiana Telephone Co., 1937, 217 Ind. 93, 26 N.E.2d 399, may conclude that the legislative limitation in § 9-2858, supra, of its powers to review the judgment is unconstitutional denial of due process. We know of no rule, statutory or otherwise, which inhibits its so holding and accordingly considering and deciding all of appellant's assignments of error. Or it may conclude that the case may be...