Burnett v. State, 29178

• Decision Date: 22 November 1954
• Docket Number: No. 29178,29178
• Parties: Glenn BURNETT, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 468

122 N.E.2d 468

233 Ind. 651

Glenn BURNETT, Appellant, v. STATE of Indiana, Appellee.

No. 29178.

Supreme Court of Indiana.

Nov. 22, 1954.

Charles E. Henderson, Evansville, for appellant.

Edwin K. Steers, Atty. Gen., Carl Humble, Deputy Atty. Gen., for appellee.

BOBBITT, Judge.

Appellant was charged by affidavit with grand larceny under Acts 1941, ch. 148, § 9, p. 447, being § 10-3001, Burns' 1942 Replacement, tried by jury, and found guilty of petit larceny.

The only error assigned is the overruling of appellant's motion for a new trial. The questions presented pertain to certain proceedings of the court by which the defendant-appellant was allegedly prevented from having a fair trial. ¹

The act or acts which are alleged to be irregular or erroneous are:

The action of the jury in returning three verdicts as follows:

(1) 'We, the jury, find the defendant guilty of petit larceny, and that he be imprisoned in the ___ for ___ days and pay a fine in the sum of _____ Dollars.'

The court did not allow this verdict to be read, but instructed the jury to retire to the jury room and complete its verdict by filling in the blanks on the form furnished them. The jury thereupon retired and returned a second verdict as follows:

(2) 'We, the jury, find the defendant Glenn Burnett, guilty of petit larceny as charged in the affidavit, and find his age to be 1-5 years, and that he pay a fine in the sum of none dollars.'

Whereupon the court read all the instructions previously given and new forms of verdict were given to the jury. To this procedure both the State and the defendant objected. The objections were overruled and the jury again retired to consider its verdict.

Later the same day the jury returned in open court the following verdict:

(3) 'We, the jury finds the defendant Burnett, guilty of petit larceny as charged in the affidavit and find his age to be 35 years, and that he pay a fine in the sum of none dollars.'

Upon this verdict defendant-appellant was sentenced to the Indiana State Prison for a period of not less than 1 year nor more than 5 years, and disfranchised for a period of 2 years.

Appellant asserts that these proceedings resulted in an invalid verdict. Three questions are thus presented:

First: Petit larceny is included in the offense of grand larceny. Payne v. State, 1924, 194 Ind. 365, 368, 142 N.E. 651; Acts 1905, ch. 169, § 272, p. 584, being § 9-1817, Burns' 1942 Replacement.

When appellant went on trial for grand larceny he also was on trial for the included offense of petit larceny, State v. Hattabough, 1879, 66 Ind. 223; and it was not error for the jury to return a verdict finding him guilty of the lesser offense.

Second: Was it error for the court to require the jury to correct its first and second purported verdicts?

The first and second verdicts were clearly defective and irregular. Under such circumstances the court properly directed the jury to retire and correct the verdict. Moore v. State, 1947, 225 Ind. 357, 359, 75 N.E.2d 193; Limeberry v. State, 1945, 223 Ind. 622, 626, 629, 63 N.E.2d 697; 23 C.J.S., Criminal Law, § 1412, P. 1110.

After the jury had reconsidered their first two verdicts and altered the defects therein, the last verdict returned was the real verdict of the jury, and the court properly accepted it as such. Gianino v. State, 1915, 183 Ind. 199, 108 N.E. 579; 23 C.J.S., Criminal Law, § 1412, pp. 1110, 1112.

The jury found the defendant-appellant guilty of petit larceny, an offense which is included in that charged in the affidavit, and that he was 35 years of age.

Statutes, such as that defining the offense of petit larceny, which provide for punishment by imprisonment in the county jail or in a state prison in the discretion of the court or jury trying the case, were not repealed by the Indeterminate Sentence Law. ² Under such statutes the court or jury trying the case can assess the punishment of imprisonment in the county jail, if that is deemed sufficient punishment for the offense committed. However, if such punishment is not considered adequate, then the finding must be made or verdict returned as provided by the Indeterminate Sentence Law. Caiger v. State, 1900, 155 Ind. 646, 647, 58 N.E. 1036.

It is evident from the verdict returned in the case at bar, that the jury deemed punishment in the county jail to be inadequate for the offense committed and accordingly returned its verdict under the Indeterminate Sentence Law, § 9-1821, Burns' 1942 Replacement. Under such circumstances it was the function of the court to pronounce sentence as provided by the particular statute violated.

The clause 'and that he pay a fine in the sum of none dollars' appearing at the end of the verdict is surplusage and has no effect upon the true verdict rendered. Moore v. State, 1947, 225 Ind. 357, 360, 75 N.E.2d 193, supra.

The verdict, 'We, the jury find the defendant, Glenn Burnett, guilty of petit larceny as charged in the affidavit and find his age to be 35 years,' is sufficient. Skelton v. State, 1898, 149 Ind. 641, 49 N.E. 901; and upon this verdict it was the function of the court to pronounce sentence. Moore v. State, 1947, 225 Ind. 357, 359-360, 75 N.E.2d 193, supr...