Cox v. State
| Decision Date | 13 October 1931 |
| Docket Number | 26,045 |
| Citation | 177 N.E. 898,203 Ind. 544 |
| Parties | Cox v. State of Indiana |
| Court | Indiana Supreme Court |
Rehearing denied June 10, 1932, Reported at: 203 Ind. 544 at 550.
1. CRIMINAL LAW---No Common-Law Crimes in Indiana.---There are no common-law crimes in this state. p. 549.
2. KIDNAPPING---As Defined under Present Statute---Not Limited by Former Statutes.---The fact that former kidnapping statutes required the taking of a person out of the state or from his place of residence cannot serve to limit the crime as it is defined under the present law which only requires the taking to be "from any place within this state" (Acts 1929, ch. 154, p. 477, 2426 Burns Supp. 1929). p. 549.
3. KIDNAPPING---Evidence Held Sufficient to Sustain Conviction.---Evidence showing that one accused of "kidnapping" forcibly carried away a child from the front yard of her playmate's home, where she was playing to a point more than 90 feet down an alley was sufficient to sustain a conviction for kidnapping (2426 Burns Supp. 1929) p. 549.
4. CRIMINAL LAW---Constitutionality of Statute Defining Crime---How Presented on Appeal.---The question of the constitutionality of a statute defining a crime cannot be first presented on appeal by assigning it as error, but must be presented to the trial court by a motion to quash the indictment or affidavit or by a motion in arrest of judgment p. 550.
5. CRIMINAL LAW---Unconstitutionality of Statute Defining Crime---Cannot be Presented by Motion for New Trial on Ground that Verdict is Contrary to Law.---The unconstitutionality of the statute on which a criminal prosecution is based cannot be presented by a motion for a new trial on the ground that the verdict is contrary to law. p. 551.
6. CRIMINAL LAW---Sufficiency of Indictment---How Questioned---Former Rule---Present Rule---Cannot be Questioned first in Supreme Court.---Formerly, the sufficiency of an indictment might be questioned for the first time in the Supreme Court, but, since the amendment of 89 of the Civil Code in 1911 (3, ch. 38, Acts 1911, 366 Burns 1926), the court holds that an indictment cannot be so questioned. p. 551.
7. CRIMINAL LAW---Appeal---Assignment of Error---That Indictment does not State Public Offense---Held not to Present any Question.---An assignment of error, on appeal from a conviction for a criminal offense, that the indictment does not state a public offense is not sufficient to present any question. p. 551.
8. CRIMINAL LAW---Appeal---Assignment of Error---That Statute on which Prosecution is Based is Unconstitutional---Presents no Question as to Sufficiency of Indictment.---An assign- ment of error that the statute on which a criminal prosecution is based is unconstitutional does not present any question as to the sufficiency of the indictment. p. 551.
9. CRIMINAL LAW---Constitutionality of Statute on which Prosecution is Based---Must be Questioned in Trial Court.---The constitutionality of the statute on which a criminal prosecution is based will not be considered on appeal unless its constitutionality was questioned in the trial court. p. 552.
10. CONSTITUTIONAL LAW---Statute Presumed to be Constitutional---Appellate Tribunal will Act on that Assumption.---A statute is presumed to be constitutional, and an appellate tribunal will act on that assumption where the parties in the court below assumed that the statute was valid. p. 552.
11. NEW TRIAL---Causes for New Trial---Meaning of Phrase "Contrary to Law."---The phrase "contrary to law," as used in cl. 9, 2325 Burns 1926, which enumerates the causes for a new trial in a criminal case, means contrary to the principles of law as applied to the facts on issues which the jury or court was called on to try. p. 552.
12. CONSTITUTIONAL LAW---When Court will Determine Question of Constitutional Law not Sufficiently Presented.---Where appellant on appeal attempts to present constitutionality of a statute by motion for a new trial alleging that the verdict is contrary to law, such question, although not sufficiently presented, is considered and decided by the court,---the appeal being one involving a sentence of life imprisonment, the constitutionality of the statute not having been previously decided and the case having been tried below before the decision of Ellwanger v. State, ante 307. p. 552.
13. CONSTITUTIONAL LAW---"Cruel and Unusual Punishment"---As Directed Against Form of Punishment---As Directed Against Degree of Punishment.---Many cases, both within and without this state, hold that a constitutional provision prohibiting "cruel and unusual punishment" (Section 16, Art. 1, Ind. Const., 68 Burns 1926) is directed against the form and character of the punishment only, such as torture and barbarous punishment, while other cases hold it is also directed against the degree, amount or length of punishment, where the punishment provided by the legislature for a certain crime is so excessive and unreasonable as to shock public sentiment and violate the judgment of a reasonable people. No case in this state has declared a law to be unconstitutional for the reason that the degree or amount of punishment provided by the legislature for a certain crime was excessive and unreasonable but such reason would, in a proper case, be sufficient for so doing. p. 553.
14. KIDNAPPING---Punishment by Life Imprisonment---Not "Cruel and Unusual Punishment"---Prohibited by Constitution.---The crime of kidnapping has always been considered a most serious offense, and repeated crimes of kidnapping caused the Legislature to enact the statute of 1929 (Section 2426 Burns 1929) making the penalty for the crime life imprisonment as a matter of public policy. The Legislature, by providing life imprisonment for the crime of kidnapping, has not violated the constitutional inhibition against "cruel and unusual punishment" (Section 16, Art. 1, Ind. Const., Section 68 Burns 1926). p. 556.
15. CONSTITUTIONAL LAW---"Cruel and Unusual Punishment"---As Directed Against a Particular Sentence Under a Valid Law---Provision in Bill of Rights Directed to all Departments of Government.---Where objection made to a punishment as being "cruel and unusual" (Section 16, Art. 1. Const., Section 68 Burns 1926), is directed to the particular sentence imposed and not to the validity of the statute under which it was imposed, it is generally held that any sentence within the maximum limit fixed by a valid statute is valid, no matter how cruel and oppressive it may be. Other cases, however, indicate that such constitutional limitation, being contained in the Bill of Rights, is directed against all departments of government including courts and not merely against the legislative department. Courts have seldom set aside as "cruel and unusual", punishment inflicted under a law that is not in itself in violation of this constitutional provision, but they have done so where the imprisonment has been so severe and out of proportion to the gravity of the offense committed as to violate the judgment of a reasonable people. p. 557.
16. KIDNAPPING---Life Imprisonment for Kidnapping a Seven-Year-Old Girl---Not "Cruel and Unusual Punishment" Prohibited by Constitution.---Even if Section 16, Art. 1, Const., Section 68 Burns 1926, requires Supreme Court to give relief against cruel and unusual punishment inflicted under a valid and constitutional law where the punishment is so severe and out of proportion to the gravity of the offense as to shock public sentiment, the court will not disturb a sentence of life imprisonment for kidnapping where the evidence showed that the defendant forcibly removed a seven-year-old girl from a yard where she was playing with a companion to a point more than 90 feet down an alley before he was discovered and pursued, the pursuit continuing for several squares until his automobile was reached, there being evidence also that he was a sexual pervert. p. 560.
From Bartholomew Circuit Court; Charles S. Baker, Judge.
Arthur Cox was convicted of kidnapping a little child, and he appealed.
Affirmed.
Montgomery & Montgomery, for appellant.
James M. Ogden, Attorney-General, and Merl M. Wall, Assistant Attorney-General, for ...
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