Cox v. State

Citation181 N.E. 469,203 Ind. 544
Decision Date10 June 1932
Docket NumberNo. 26045.,26045.
PartiesCOX v. STATE.
CourtIndiana Supreme Court


Appeal from Bartholomew Circuit Court; Chas. S. Baker, Judge.

On petition for rehearing.

Petition denied.

For former opinion, see 177 N. E. 898.

Montgomery & Montgomery, of Seymour, for appellant.

James M. Ogden, Atty. Gen., and Merl M. Wall, Deputy Atty. Gen., for the State.


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.”

[1] 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 offense. “The question of whether an indictment [or affidavit] 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, 950, 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.

[2][3][4] 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, c. 38, Acts 1881 Sp. Sess., as amended by section 3, c. 157, Acts 1911, section 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 (1912) 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 (1915) 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, 118, nor is an assignment of error that “the statute upon which the prosecution is based is unconstitutional and void,” Alderson v. State (1929) 201 Ind. 359, 168 N. E. 481, 482.

[5][6] 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 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, 730, 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.”

[7] 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 were 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, Ind. Sup.) 180 N. E. 287. It follows that we are not required, by the assignment of error made herein, to determine the constitutionality of section 1, c. 154, Acts 1929, section 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 facts 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 section 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 section 2427, Burns' 1926, making it unlawful to 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, section 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 A. & E. Encyc. (2d) 440; 35 L. R. A. 563, note. Thus in Kistler v. State (1921) 190 Ind. 149, 129 N. E. 625, 628, it was said: “The constitutional provisions as to ‘cruel and unusual punishments 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 pillory, burning at the stake, breaking on the wheel,” etc. Hobbs v. State (1893) 133 Ind. 404, 32 N. E. 1019, 1021, 18 L. R. A. 774.

Measured by this rule the imprisonment provided for in the statute involved in the instant case is not “cruel and unusual.”

Other cases hold that this constitutional limitation is directed against not only cruel, inhuman, and barbarous forms of punishment in kind, which are now obsolete, but also against the degree or amount of punishment, and that a law which provides for an imprisonment, which, for the crime defined, is, by reason of its length, excessive and wholly unreasonable and so out of proportion to the offense defined as to shock public sentiment and violate the judgment of a reasonable people and so severe as to show an abuse of legislative discretion, may be declared unconstitutional. Weems v. U. S. (1909) 217 U. S. 349, 30 S. Ct. 544, 54 L. Ed. 793, 19 Ann. Cas. 705;Fisher v. McDaniel (1901) 9 Wyo. 457, 64 P. 1056, 87 Am. St. Rep. 971;State v. Becker (1892) 3 S. D. 29, 41, 51 N. W. 1018. See Hart v. Com. (1921) 131 Va. 726, 744, 745, 109 S. E. 582; 8 R. C. L. 266, § 277; 8 A. & E. Encyc. Law 440; Bishop Cr. L. (9th. Ed.) 697; 16 C. J. 1355, § 3192, note 20; note, 35 L. R. A. 564.

In U. S. v. Borromeo (1912) 23 Philippine 279, at page 286, these two groups of authorities are discussed, and the court points out (page 289), that the view “that courts should not concern themselves with the relative magnitude of the crime and the penalty is wrong, both in logic and in fact.” The court says: “A contrary view leads to the astounding result that it is impossible to impose a cruel and unusual punishment so long as none of the old and discarded modes of punishment are used; and that there is no restriction upon the power of the legislative department, for example, to prescribe the death penalty by hanging for a misdemeanor, and that the courts would be compelled to impose the penalty. Yet such a punishment for such crime would be considered extremely cruel and unusual by all right-minded people.”

While no case in this state has declared a law to be unconstitutional because the degree or amount of punishment provided therein was excessive or unreasonable, yet the language used in some of our cases indicates that such reason would, in a proper case, be sufficient grounds for so doing. In Rice v. State (1855) 7 Ind. 332, it was said: “If any question can be raised before the judiciary upon the discretion of the legislature under that section (the statute on murder) we concur that it has not been abused in leaving the question of assessing that penalty to the jury.”

In Kistler v. State (1921) 190 Ind. 149, 158, 129 N. E. 625, 628, it was said: “Defining crimes and prescribing the limits of punishment to be inflicted is a legislative, and not a judicial, function. While it is not impossible, yet it is highly improbable, in this day and age, that the courts will be called upon or feel authorized to strike down a law unless it unmistakably and conclusively appears that it carries a punishment shockingly disproportioned to the offense charged.”

In State v. Hogreiver (1899) 152 Ind. 652, 662, 53 N. E. 921, 925, 45 L. R. A. 504, it was said: “Natural justice requires that the penalty shall bear some proportion to the nature and circumstances of the offense. The legislature is clothed with the power of defining crimes and misdemeanors, and fixing their punishment; and its discretion in this respect, exercised within constitutional limits (our italics), “is not subject to review by the courts. *** The graduation of penalties for offenses differing...

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