Daly v. Carr

• Decision Date: 23 May 1934
• Docket Number: 25,899,25,900
• Citation: 190 N.E. 429,206 Ind. 554
• Parties: Daly et al. v. Carr et al
• Court: Indiana Supreme Court

190 N.E. 429

206 Ind. 554

Daly et al. v. Carr et al

No. 25,899, 25,900

Supreme Court of Indiana

May 23, 1934

From LaPorte Superior Court; Harry L. Crumpacker, Judge.

James Carr and Otto McAble, each between the ages of 16 and 30 were convicted of automobile banditry and given indeterminate sentences of not less than 10 nor more than 25 years, and after serving a minimum of 10 years, filed separate habeas corpus proceedings against Walter H. Daly individually and as warden of the Indiana State Prison. From judgments for petitioners, the defendant appealed and appeals consolidated.

Reversed.

James M. Ogden, Attorney-General, and Earl B. Stroup, Deputy Attorney-General, for appellants.

Walterhouse & Miller and Clarence W. Dearth, for appellees.

Charles P. Tighe, amicus curiae.

Fansler, J. Treanor, J., concurs in result.

OPINION

Fansler, J.

These cases are appeals from judgments of the LaPorte Superior Court discharging the appellees from the Indiana State Prison upon writs of habeas corpus.

The cases were ordered consolidated for briefing and argument. The records are identical except as to the names, ages, and description of appellees.

The petitions allege in substance that on June 30, 1923, appellees were convicted of the crime of automobile banditry and sentenced to be imprisoned for the indeterminate term of from ten to twenty-five years; that they were immediately imprisoned and had served continuously since that time; that their prison records were excellent and such as to entitle them to a dimunition of sentence under the "Good Time" law of 1883 (chapter 131 of Acts of 1883). It is their contention that the sentence imposed upon them purporting to be indeterminate is, in fact, a determinate sentence for the minimum term of ten years, and this is conceded by appellants. Appellees assert that the law of 1883 is still in force with regard to determinate sentences. The court below so held in overruling appellants' motions to quash the writs, and the only error assigned is predicated upon the court's so ruling.

It is provided by chapter 131 of the Acts of 1883 that every convict confined in the prisons of the State who shall have no infractions of the rules or regulations of the prisons or laws of the State recorded against him, and who shall perform the duties assigned him, shall be entitled to a dimunition of time from his sentence according to a table therein set out.

In 1897 there was enacted "An Act concerning the manner of procedure in the trial of certain felonies, and prescribing punishment therefor, and appointing a commission on parole, and authorizing it to make rules for the government thereof." (Acts of 1897, p. 219). In the case of McCoy v. Reid (1909), 172 Ind. 182, 87 N.E. 1086, this law, known as the Indeterminate Sentence Law, was held to have repealed the "Good Time" law of 1883.

It is contended that the sentence imposed in the case last referred to was an indeterminate one and that, therefore, the Act of 1883 did not apply in any event, and, as a consequence, what was said by the court concerning a repeal by implication was dictum. But in 1905 the legislature recodified the criminal law of the State in an Act entitled "An Act concerning public offenses." The Act consists of 699 sections, and it purports to rewrite the law of the State concerning criminal procedure, crimes, and punishment. § 275 of the law provides that:

"In all cases of felony tried before any court or jury in this state, if the defendant, being a male person, be found guilty of any crime other than treason or murder, it shall be the duty of the court or jury to further find whether he is over sixteen and less than thirty years of age. If such defendant be found to be between said ages, it shall be stated in the finding or verdict only that he is guilty of the crime charged, naming it, and that his age is that so found to be his true age. In such case, the court, instead of pronouncing against the defendant a definite term of imprisonment in the state prison, shall sentence him to the custody of the board of managers of the Indiana reformatory, to be confined in said reformatory, or at such other place as may be designated by such board where he can be safely and properly cared for, as guilty of the crime so found against him, and that he be confined therein for a term not less than the minimum nor more than the maximum time prescribed by the statutes of this state as the punishment for such offense, subject to the rules and regulations established by such board of managers. And it shall be the duty of such board to receive all such convicted persons; any provision of this act requiring the courts of this state to sentence such persons to the state prison is hereby so modified as to make it the duty of the courts to sentence them to the reformatory. The board of managers, after such minimum period, may terminate such imprisonment when the rules and requirements of the reformatory have been lived up to and fulfilled."

Section 699 of the Act of 1905 provides that: "All laws within the purview of this act are hereby repealed; . . ."

The Act was clearly intended as a re-enactment of the criminal code, and was designed to cover all crimes, punishment, and criminal procedure. The law of 1883 is not re-enacted as a part of the Act, though within its purview, and, therefore, by the express provision of the repealing clause, and by all of the rules of construction, it must be deemed repealed. McCardle et al. v. Board, etc. (1924), 195 Ind. 281, 144 N.E. 877; Pittsburgh, etc., Ry. Co. v. Lightheiser (1904), 163 Ind. 247, 71 N.E. 218, 71 N.E. 660.

But, even if the law of 1883 were not repealed by the Act of 1905, it would not apply to the appellees. The appellees were twenty-one and twenty-six years of age, respectively. § 275 of the Act of 1905, above quoted, is a special enactment applying to male convicts between the ages of sixteen and thirty years, and, therefore, it applies to appellees. The "Good Time" law of 1883 is a general law applying to all persons who are convicted of crime. General statutes must give way to special statutes upon the same subject matter. Daniels v. State (1898), 150 Ind. 348, 50 N.E. 74; Stockton v. Yeoman (1913), 179 Ind. 61, 100 N.E. 2; Kingan & Co. v. Ossam (1921), 190 Ind. 554, 131 N.E. 81.

Appellees were convicted under the Act of 1921, p. 91, § 2548, Burns 1926, § 10-4710, Burns 1933, § 2573, Baldwin's 1934, describing the crime of automobile banditry, which provides that if two or more persons shall commit a felony, having at the time on or near the premises where such felony is committed an automobile, or other self-moving conveyance, by the use of which they escape, or attempt to escape, they shall be "guilty of automobile banditry, and upon conviction thereof shall be imprisoned in the state prison for any determinate period not less than ten (10) years nor more than twenty-five (25) years."

Appellees plead guilty, the court found the age to be between sixteen and thirty, and committed each "to the custody of the Board of Trustees of the Indiana Reformatory to be confined by them according to law for a period of not less than ten years nor more than twenty-five years . . ."

It is contended by appellees, and conceded for the purpose of the case by appellants, that the sentence provided for by the automobile banditry statute is a determinate sentence, and that, therefore, the judgment of the court must be treated as a determinate...