181 N.E. 469 (Ind. 1932), 26,045, Cox v. State

Docket Nº:26,045
Citation:181 N.E. 469, 203 Ind. 550
Opinion Judge:Martin, J. --
Party Name:Cox v. State of Indiana
Judge Panel:Martin, J. Travis, J., concurs. Treanor, J., dissents.
Case Date:June 10, 1932
Court:Supreme Court of Indiana

Page 469

181 N.E. 469 (Ind. 1932)

203 Ind. 550



State of Indiana

No. 26,045

Supreme Court of Indiana

June 10, 1932

203 Ind. 544 at 550.

Original Opinion of October 13, 1931, Reported at: 203 Ind. 544.

Petition for rehearing denied.

Martin, J. Travis, J., concurs. Treanor, J., dissents.


On Petition for Rehearing.

Martin, J. --

The appellant says this court "erred in holding that the constitutionality of a statute cannot be presented on appeal under an assignment (of error) that the (trial) court erred in overruling appellant's motion for a new trial, which motion alleged that the verdict of the jury was 'contrary to law.'"

If the statute upon which an indictment or affidavit is based is unconstitutional, then such indictment or affidavit cannot state facts which constitute a public [203 Ind. 551] offense. "The question of whether an indictment states facts constituting a public offense should be presented by a motion to quash, or a motion in arrest. In this manner only can the rights of the State be properly protected." State v. Beach (1897), 147 Ind. 74, 43 N.E. 949, 46 N.E. 145, 36 L. R. A. 179; Guetling v. State (1927), 199 Ind. 630, 158 N.E. 593; De La Tour v. State (1929), 201 Ind. 14, 165 N.E. 753. The unconstitutionality of a statute cannot be presented by a motion for a new trial on the ground that the verdict is contrary to law. Guetling v. State, supra; De La Tour v. State, supra.

Formerly the sufficiency of an indictment might be questioned for the first time in the Supreme Court on appeal by a defendant without having made a motion to quash or in arrest in the trial court, Henderson v. State (1878), 60 Ind. 296; Pattee v. State (1887), 109 Ind. 545, 10 N.E. 421, but, by applying a section of the Civil Code, § 89, ch. 38, Acts 1881, as amended by § 3, ch. 157, Acts 1911, § 366 Burns 1926, the court changed the rule so that it is now held that an indictment cannot be so questioned for the first time in this court. Robinson v. State (1911), 177 Ind. 263, 97 N.E. 929; Hay v. State (1912), 178 Ind. 478, 98 N.E. 712, Ann. Cas. 1915C 135; Robinson v. State (1916), 184 Ind. 208, 110 N.E. 980; Scherer v. State (1917), 187 Ind. 15, 116 N.E. 52. An assignment of error on appeal in a criminal case that "the indictment does not state a public offense" is not sufficient, Boos v. State (1914), 181 Ind. 562, 105 N.E. 117, nor is an assignment of error that "the statute upon which the prosecution is based is unconstitutional and void" sufficient. Alderson v. State (1929), 201 Ind. 359, 168 N.E. 481.

Page 470

The constitutionality of a statute upon which a prosecution is based will not, according to the weight of authority, be considered on appeal unless the question [203 Ind. 552] as to its constitutionality was raised in the court below. 17 C. J. 53. A statute is presumed to be constitutional and an appellate tribunal will act upon the theory voluntarily assumed in the trial court. Thus in Fritz v. State (1912), 178 Ind. 463, 99 N.E. 727, the court declined to determine the constitutionality of the act providing for the establishment of hospitals for insane criminals "for the reason that in the trial of the cause the court and the parties assumed the section in question to be a valid enactment."

The phrase "contrary to law," as used in clause 9, § 2325 Burns 1926 (which enumerates the causes that may be assigned in a motion for a new trial), means contrary to the principles of law as applied to the facts or issues which the jury was called upon to try and such reason alleged in a motion for a new trial, the overruling of which is assigned as error, is not sufficient to present the constitutionality of the law upon which a prosecution is based. Ellwanger v. State (1932), ante 307, 180 N.E. 287. It follows that we are not required, by the assignment of error made herein, to determine the constitutionality of § 1, ch. 154, Acts 1929, § 2426 Burns Supp. 1929.

However, considering the fact that the case of Ellwanger v. State, supra, was not decided until after the instant appeal was taken, the fact that the penalty of life imprisonment has been imposed in this case and the fact that the constitutionality of the act here involved has never been decided, we have determined to consider and decide the appellant's contentions in this regard. He refers to § 4343 Burns 1926, making it unlawful to entice or take a child from any institution or home for orphans or dependent or neglected or delinquent children, which crime is punishable by fine and to which may be added imprisonment not to exceed one year, and to § 2427 Burns 1926 making it unlawful to [203 Ind. 553] take . . . or entice away a child under the age of 14 with intent to conceal it, which is punishable by fine and imprisonment for not less than two nor more than 14 years, and says: "The offense proved in this case, if unlawful intent be inferred or conceded, is certainly not more serious than the last offense defined, and the imposition of a penalty of life imprisonment shocks all sense of justice and should, if necessary, annul the statute."

Section 16, Art. 1, Indiana Constitution, § 68 Burns 1926, provides that "cruel and unusual punishment shall not be inflicted." It has been said in many cases both within and without this jurisdiction, that such a constitutional limitation is directed against the form and character and not against the degree, amount or severity of such punishment as the Legislature shall deem proper for a crime; that it prohibits the infliction of all forms of torture and barbarous punishment, 1 but does not for any offense prohibit imprisonment no matter for what length of time such imprisonment may be. 16 C. J. 1354, § 3192; 8 R. C. L. 262, § 271; 8 Am. & Eng. Ency. (2d) 440; 35 L. R. A. 453, note. Thus in Kistler v. State (1921), 190 Ind. 149, [203 Ind. 554] 129 N.E. 625, it was said: "The constitutional provisions, 'cruel and unusual punishment,' are aimed at the form or character of the punishment rather than its severity in respect to duration and amount."

"The word 'cruel,' when considered in relation to the time when it found place in the Bill of Rights, meant not a fine or imprisonment, or both, but such as that inflicted at the whipping-post, in the...

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