Gillespie v. State
| Decision Date | 23 November 1857 |
| Parties | Gillespie v. The State |
| Court | Indiana Supreme Court |
From the Howard Circuit Court.
The judgment is affirmed with costs.
Charles D. Murray and Henry A. Brouse, for appellant.
At the November term, 1856, Gillespie was indicted in the Howard Circuit Court for an assault and battery on one Hurley, with intent to murder. At the May term, 1857, there was a jury trial, and a verdict finding the defendant guilty of a simple assault and battery; but not guilty of the intent to murder. Fine, 75 dollars, and six months' confinement in the county jail.
Several motions in arrest, and to discharge the prisoner, etc., were made and overruled, and the ruling excepted to. Gillespie appeals.
The errors assigned are--
1. The Court erred in overruling the motion in arrest.
2. In refusing a new trial.
3. In entering judgment on the verdict of the jury by a Court having no jurisdiction of the case.
4. In overruling the motion to discharge the prisoner.
First. The indictment is good, and cannot be reached by the motion in arrest. 2 R. S. p. 380. Dillon v. State post. p. 408.
Secondly. The motion for a new trial cannot be noticed, because the evidence is not in the record, and because it is superseded by the motion in arrest. Bepley v. State, 4 Ind. 264.
Thirdly. The third and fourth errors assigned require more consideration.
At common law, the misdemeanor of which he was convicted, would have been merged in the felony with which he was charged. Thus, Chitty says, "a defendant cannot be found guilty of a misdemeanor on an indictment for felony." 1 Cr. Law, 521. The same author elsewhere lays down the rule thus: 1 Chit. Cr. L. 207.
In State v. Kennedy, 7 Blackf. 233, a contrary doctrine is held. But it cannot be followed as authority. For it is admitted that the common law is as above stated, and that it was changed in this behalf in England by statute [1]. We have adopted the common law prior to 4 James I., but not the recent English statutes. Unless changed, therefore, by statute in this state, the common-law rule must still be regarded as in force. Wright v. State, 5 Ind. 527; Martin v. Starr, 7 Ind. 224. Courts have no more power to set aside the common law where it applies, than they have to set aside a statute, which they might deem inexpedient. That belongs to the legislative department.
At common law, therefore, the verdict was equivalent to an acquittal. So it was held in Wright v. State, supra, under the statute of 1843.
But now it is otherwise regulated by statute in this state, also. Thus, "the grand jury shall have cognizance of felonies only; but on an indictment for an assault, or an assault and battery, with intent to commit a felony, the defendant may be convicted of a lesser offense. 2 R. S. p. 388, sec. 14. The lesser offense here spoken of, must, of course, be a misdemeanor. For in the previous section, it is provided that crimes punishable with death or in the penitentiary, are denominated felonies; all other offenses, misdemeanors. Id. sec. 13. Here, then, is an explicit provision that a party indicted for a felony may be convicted for a misdemeanor.
But classification, or rather codification, is not the distinguishing feature of the revision. Nor could it be expected, where the commissioners and various committees of the legislature were simultaneously at work on the same subjects, or on those intimately connected and running into each other.
Accordingly the foregoing provisions were placed in a bill prepared by the legislature. At the same time, the revisors proper placed in the code of procedure in criminal cases, a somewhat similar provision, which will be presently noticed.
The sections above quoted are found in an act with this title:
"An act to limit the number of grand jurors, and to point out the mode of their selection; defining their jurisdiction, and repealing all laws inconsistent therewith." 2 R. S. p. 387.
Are so much of the sections quoted, providing that on an indictment for felony the defendant may be convicted of a lesser offense embraced in the title, or do they contain matter properly connected with the subject embraced in the title? We think not. The constitutional provision (sec. 19, Art. 4,) is familiar to all, and need not be quoted. It would seem to be trifling with that instrument to say that it is only directory to the legislature. If it is not imperative, it is nothing.
So far from having any connection with the duties of the grand jury, or any matter expressed in the title, these sections relate to the trial before the traverse jury, and the grade of offense which the contingencies of proof may establish there. Under the nineteenth section of article 4 of the constitution, supra, and the exposition which we have heretofore, with great consideration, placed upon it, the sections quoted not being embraced in the title, nor properly connected with the subject of the act, are void. Greencastle Township v. Black, 5 Ind. 557, 573; Indiana Central Railway Co. v. Potts, 7 Ind. 681 [2].
It but remains to examine the sections on that subject placed in the code of criminal pleading and practice by the revisors. These sections provide that, "upon an indictment for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged, and guilty of any degree inferior thereto; or of an attempt to commit the offense. 2 R. S. p. 370, sec. 72. But a simple assault and battery is not any of the degrees of murder, nor of the assault, etc., with intent to commit such crime. It is simply a misdemeanor, as elsewhere defined by the statute. Id. p. 388, sec. 13. This section leaves the question precisely as it stood at common law. 1 Chitty Cr. L. supra. And the statute gives the grand jury in affirmative terms, but implying a negative on anything further, "cognizance of felonies only." Section 14, supra.
But the revisors made a further provision, which must be construed together with the other provisions relating to the same subject. Thus--"In all other cases, the defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment." 2 R. S. p. 370, sec. 73.
There is no constitutional objection to the act in which this provision is found. The seventy-third section must, therefore, be taken in connection with the acts defining the jurisdiction of the Courts. Thus the Circuit Court has original, exclusive jurisdiction of felonies. 2 R. S. p. 6, sec. 5. But the Common Pleas has not exclusive, though it has original, jurisdiction of misdemeanors. 2 R. S. p. 18, sec. 14. So that the section in question does not conflict with the jurisdiction conferred on these Courts, respectively. The construction here given is in accordance with the views of all the judges in the case of Spencer v. State, 5 Ind. 41.
We are therefore, of opinion that this section embraces the case at bar. The defendant is charged with an assault and battery with intent to murder. The jury negative the intent, but find the fact of the assault and battery. An...
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