Marshall v. State

Full title: MARSHALL v. STATE OF INDIANA

Court: Court of Appeals of Indiana

Date published: Jun 18, 1929

166 N.E. 777 (Ind. Ct. App. 1929)

166 N.E. 777

Opinion

No. 13,493.

Filed June 18, 1929.

1. APPEAL — From Juvenile Court — Time for Filing Transcript — Dismissal of Appeal. — In order to take an appeal from a decision of a juvenile court (the circuit court sitting as a juvenile court), the transcript must be filed in the office of the Clerk of the Supreme Court within thirty days from the date of the judgment (§ 1709 Burns 1926), and where it is not filed until thirty-five days after the judgment, the appeal must be dismissed. p. 471.

2. CRIMINAL LAW — Appeal by Defendant — Notice of Appeal — Must be Served on Prosecuting Attorney. — Under the express provision of the statute (§ 2384 Burns 1926), in an appeal by the defendant in a criminal case, notice of the appeal must be served on the prosecuting attorney. p. 471.

From Wells Circuit Court; M.W. Walbert, Special Judge.

Elmer Marshall was convicted of contributing to the delinquency of a minor child, and he appealed. Appeal dismissed. By the court in banc.

Meade S. Hays, for appellant.

James M. Ogden, Attorney-General, and Merl M. Wall, Deputy Attorney-General, for the State.

McMAHAN, C.J.

Appellant was convicted in the Wells Circuit Court, sitting as a juvenile court, of contributing to the delinquency of a minor child. Judgment was rendered October 3, 1928, and the transcript on appeal filed in the office of the clerk of this court November 7, 1928.

The Attorney-General urges that this appeal should be dismissed because of the failure of appellant to give notice to the prosecuting attorney as required by statute of his intention to take an appeal, and because of his failure to file the transcript in the time specified by statute.

Section 1709 Burns 1926, Acts 1907 p. 221, § 1, provides among other things: "The party appealing shall file a transcript in the office of the clerk of the Supreme Court within thirty days 1. from the date of the rendition of the judgment appealed from." The transcript was not filed with the clerk of this court until thirty-five days after the rendition of the judgment appealed from. This was too late.

Section 2384 Burns 1926, Acts 1905 p. 584, § 330, provides that when an appeal is taken by a defendant, written notice must 2. be served upon the prosecuting attorney. This applies to the instant case, and makes the giving of notice an essential element in taking an appeal, and such notice must be given. § 1709, supra.

Appeal dismissed.