Bealer v. The State

• Decision Date: 28 April 1898
• Docket Number: 18,558
• Citation: 50 N.E. 302,150 Ind. 390
• Parties: Bealer v. The State
• Court: Indiana Supreme Court

50 N.E. 302

150 Ind. 390

Bealer v. The State

No. 18,558

Supreme Court of Indiana

April 28, 1898

From the Morgan Circuit Court.

Affirmed.

J. V Mitchell and D. E. Watson, for appellant.

William A. Ketcham, Attorney-General, for State.

McCabe J., Jordan, J., took no part in this decision.

OPINION

McCabe, J.

Appellant was convicted on an indictment charging him with receiving stolen property, knowing the same to have been stolen, namely, two hens, alleged to be of the value of one dollar, and sentenced to the State prison for not less than one nor more than three years, and fined one dollar. The errors assigned, and not waived, call in question the action of the circuit court in overruling appellant's motion for a new trial, for a venire de novo, and in arrest of judgment.

Under the motion for a new trial, the giving and refusing of certain instructions to the jury are complained of; and, as was said in State v. Hunt, 137 Ind. 537, 37 N.E. 409: "None of the instructions are embodied in a bill of exceptions. They are copied into the transcript with no other authentication of them as parts of the record below than a statement on the margin of each, to wit: 'Given, and excepted to by the State [defendant here] October 17th, 1893 [here, this 19th day of Nov. 1897],'" signed by the attorney for the party, and the judge. "It has been held that instructions in criminal cases cannot be incorporated in the record in that way, though they may be so incorporated in a civil case, and that in a criminal case they can only be brought into the record by a bill of exceptions." To the same effect are Chandler v. State, 141 Ind. 106, 39 N.E. 444; Reynolds v. State, 147 Ind. 3, 46 N.E. 31; Reinhold v. State, 130 Ind. 472; Brown v. State, 111 Ind. 441, 12 N.E. 514; Hollingsworth v. State, 111 Ind. 289, 12 N.E. 490; Meredith v. State, 122 Ind. 514, 24 N.E. 161; Delhaney v. State, 115 Ind. 499, 18 N.E. 49; Leverich v. State, 105 Ind. 277, 4 N.E. 852.

The punishment for the offense of which appellant was convicted, as provided in the statute defining it, is the same as that prescribed by the statute for grand larceny; but if the goods are worth less than $ 25.00, as was the case here, the punishment is the same as that prescribed for petit larceny. Section 2012, Burns' R. S. 1894 (1935, R. S. 1881). The punishment prescribed for petit larceny is imprisonment in the State prison not more than three years, nor less than one year, a fine in any sum not exceeding $ 500.00, and disfranchisement and incapacity to hold any office of trust or profit for any determinate period, or imprisonment in the county jail not more than one year, and a fine not exceeding $ 500.00, and disfranchisement and incapacity to hold any office of trust or profit for any determinate period.

This prosecution is subject to the indeterminate sentence law, if the case falls within its provisions, because the offense is charged to have been committed on February 2, 1897, after that law took effect. But the offense charged is one that may fall within the provisions of that act, or may not, depending on the determination of the question by the jury or the court trying the cause as to the measure of punishment deserved by the defendant. If, under all the circumstances disclosed by the evidence, either of aggravation or mitigation, the jury or court trying the case should deem a jail sentence, and the other incidental punishment provided in case of such jail sentence, as severe as the defendant deserves, then the finding or verdict, as we have held, should be returned precisely as if the indeterminate sentence law had not been passed, because in that event the case would not fall within either that law or the reformatory act. Hicks v. State, ante, 293. And, on the contrary, if, in all that class of felonies where there may be a jail sentence,...