Pooley v. State

• Decision Date: 31 August 1945
• Docket Number: 17342.
• Citation: 62 N.E.2d 484,116 Ind.App. 199
• Parties: POOLEY v. STATE.
• Court: Indiana Appellate Court

62 N.E.2d 484

116 Ind.App. 199

POOLEY v. STATE.

No. 17342.

Appellate Court of Indiana, in Banc.

August 31, 1945

Rehearing Denied Sept. 21, 1945.

Appeal from Allen Juvenile Court; William H. Schannen, Judge.

John Pooley was convicted of contributing to the delinquency of a six-year-old child, and he appeals.

Affirmed.

Robert A. Buhler, of Fort Wayne, for appellant.

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

CRUMPACKER Presiding Judge.

The appellant was charged in the juvenile court of Allen County with contributing to the delinquency of his foster daughter Janet Pooley, a child six years of age, and upon his plea of not guilty was tried and convicted. He was sentenced to serve 180 days at the Indiana State Farm and fined in the penal sum of $500. This appeal is prosecuted by virtue of Sec. 9-2858 Burns' 1942 Replacement, which provides as follows: 'An appeal to the Appellate Court shall lie from any decision and judgment of the juvenile court, except when there has been a plea of guilty. The party appealing shall file a transcript in the office of the clerk of the Supreme Court within thirty (30) days from the date of the rendition of the judgment appealed from. It is hereby made the duty of the judge of the juvenile court, when such an appeal is prayed, to certify the facts of the case in the form of a special finding, and the Appellate Court shall pass on the sufficiency of such facts to sustain the judgment rendered. In case the party appealing questions the sufficiency of the evidence to warrant the findings thus made by the court, such evidence shall be incorporated in a bill of exceptions filed in said juvenile court and made a part of the record. The special findings and not the informal complaint shall be considered as the basis of the judgment rendered, and no such judgment shall be reversed except as the finding of facts or evidence to sustain the same shall be found by the Appellate Court to be insufficient. An assignment of error that the decision of the juvenile court is contrary to law shall be sufficient to present both the sufficiency of the facts found to sustain the findings.'

The transcript of the record filed in this court consists of (1) certified copies of all pleadings, motions and other papers filed below together with all orderbook entries of the juvenile court of Allen County in connection with the case; (2) certified facts of the case in the form of a special finding made and duly authenticated by the judge of said court; and (3) a bill of exceptions containing the evidence given at the trial. No reporter having been called by the court or demanded by either party, a longhand transcript of the evidence was not available and the bill of exceptions above referred to consists of an agreed statement, in narrative form, of the substance of all the evidence adduced at the trial.

The appellant's assignment of errors asserts that the decision of the court is contrary to law. As specifically provided by the above statute, this assignment questions both the sufficiency of the evidence to warrant the facts as specially found by the court and the sufficiency of the facts so found to sustain the judgment rendered.

The appellant first contends that the bill of exceptions containing the evidence affirmatively discloses that none of the witnesses who testified for the State were sworn either before or during the progress of the trial as required by Sec. 2-1711, Burns' Annotated Statutes 1933, Sec. 299, Baldwin's 1934. Therefore, the appellant says, the testimony given by each of the State's witnesses must be wholly disregarded and there remains no evidence to sustain the court's special findings of fact.

The statutory requirement that 'Before testifying, every witness shall be sworn to testify the truth, the whole truth, and nothing but the truth,' Sec. 2-1711, Burns' Annotated Statutes 1933, Sec. 299, Baldwin's 1934, supra, can be waived by the parties and if no objection is made to a witness testifying without being so sworn such waiver will be presumed. 'Unless the party objecting thereto can and does show that he was not guilty of laches in permitting a witness to testify without being sworn, and that the testimony of the witness was false on some material matter at issue, a new trial will not be awarded because of such irregularity.' Watson's Works Practice, Vol. II, Sec. 1507, p. 179; Slauter v. Whitelock, 1859, 12 Ind. 338; Stroup, Adm'r v. State ex rel. Fitch et ux., 1880, 70 Ind. 495; Sheeks v. Sheeks, 1884, 98 Ind. 288; Leach v. Ackerman, 1891, 2 Ind.App. 91, 28 N.E. 216. We have searched the record before us and nowhere does it appear that the appellant made any objection to any witness in the case testifying without first having been sworn nor did the appellant make any attempt whatever to excuse his laches in making the objection he now seeks to interpose in this court for the first time.

The appellant next seeks to eliminate the testimony of Janet Pooley because, at the time such testimony was taken, she was a child under 10 years of age and disqualified as a witness unless it appeared that she understood the nature and obligation of an oath. Sec. 2-1714, Burns' 1933, Sec. 303, Baldwin's 1934. No voir dire examination of the child appears in the bill of exceptions, which is certified as containing all of the evidence taken at the trial. Therefore, the appellant insists that we must conclude there was no such examination and that the trial court abused its discretion in receiving the child's testimony without first having satisfied itself that she understood the nature and obligation of an oath. Here also the appellant failed to object when the witness was offered and there is no showing as to why he failed to do so.

It has been held that, if a witness is by statute declared incompetent to...