Davis v. State

• Decision Date: 18 November 1898
• Docket Number: 18,499
• Citation: 51 N.E. 928,152 Ind. 34
• Parties: Davis v. The State
• Court: Indiana Supreme Court

51 N.E. 928

152 Ind. 34

Davis v. The State

No. 18,499

Supreme Court of Indiana

November 18, 1898

Rehearing Denied Dec. 30, 1898.

From the Clark Circuit Court.

Reversed.

M. Z Stannard, for appellant.

W. L Taylor, Attorney-General, W. A. Ketcham, Merrill Moores and Dickey & Aydelotte, for State.

OPINION

McCabe, J.

The appellant was tried by a jury in the Clark Circuit Court on an indictment charging him with an assault perpetrated April 13, 1896, on one Thomas Glynn, with the felonious intent to murder the said Glynn. The jury found appellant "guilty of the crime charged in the indictment, and that he be fined in the sum of $ 50, and that his age is fifty-four years." On this verdict the circuit court rendered judgment that he be confined in the state prison not less than two and not more than fourteen years, and for the fine of $ 50 and costs, over appellant's motions for a new trial, for a venire de novo, and in arrest of judgment. The assignment of errors calls in question these several rulings as the sole grounds on which a reversal of the judgment is sought. Under the motions for a venire de novo and in arrest of judgment, it is contended by appellant that the act approved March 8, 1897, the only law authorizing such a verdict and judgment, known as the indeterminate sentence law, is unconstitutional as to this case, because, as applied to this case, it is an ex post facto law, the alleged crime having been committed before the passage of the act. The constitutionality of the act in all other respects has recently been upheld by this court in Vancleave v. State, 150 Ind. 273, 49 N.E. 1060; Wilson v. State, 150 Ind. 697, 49 N.E. 904; Miller v. State, 149 Ind. 607, 40 L. R. A. 109, 49 N.E. 894.

Section 24 of article 1 of the bill of rights in the Constitution provides that "No ex post facto law * * * shall be passed." Section 69 Burns 1894, section 69 Horner 1897. The question is what is an ex post facto law? This court, as far back as 1822, defined the meaning of the phrase as follows: "The words ex post facto have a definite, technical signification. The plain and obvious meaning of this prohibition is, that the legislature shall not pass any law, after a fact done by any citizen, which shall have relation to that fact, so as to punish that which was innocent when done; or to add to the punishment of that which was criminal; or to increase the malignity of a crime; or to retrench the rules of evidence, so as to make conviction more easy." Strong v. State, 1 Blackf. 193. To the same effect are Dinckerlocker v. Marsh, 75 Ind. 548; Hicks v. State, 150 Ind. 293, 50 N.E. 27; Commonwealth v. Mott, 21 Pick. 492; State v. Arlin, 39 N.H. 179; Mullen v. State, 31 Ill. 444. At the time of the decision in Strong v. State, supra, the same provision, as to ex post facto laws, existed that exists now. Section 69, R. S. 1843, article 1. In that case the punishment of the offense was changed by law from whipping not exceeding 100 stripes to confinement in the state prison, after the commission of the offense and before the conviction. The sentence to a fine and confinement in the penitentiary at hard labor for a year and a day was affirmed as not being ex post facto. If the substitution of confinement in the state prison at hard labor for a period not exceeding seven years in place of whipping not exceeding 100 stripes, as the statute in that case provided, being enacted after the offense was committed, could not be deemed to add to or increase the punishment by the new law, and hence not ex post facto, much more can it be justly held that the indeterminate sentence law does not add to or increase the punishment of appellant's offense, beyond that existing at the time of its commission. The punishment by law at the time of the commission of the offense charged in the indictment was and is imprisonment in the state prison not more than fourteen years nor less than two years, and a fine not exceeding $ 2,000. The indeterminate sentence law has not changed this, but only prescribes a different method of fixing the amount of punishment within those limits. And taking that whole law together, and reading it into the judgment of conviction in its reformatory character, it mitigates the severity of the punishment as prescribed in the criminal code, as we substantially held in Miller v. State, 149 Ind. 607, 49 N.E. 894, and hence it does not add to or increase the punishment, and is therefore not an ex post facto law as applied to this case. Such is the rule held in Commonwealth v. Brown, 167 Mass. 144, 45 N.E. 1; In re Conlon, 148 Mass. 168, 19 N.E. 164; State, ex rel., v. Peters, 43 Ohio St. 629, 4 N.E. 81.

The contention that the act is ex post facto because it repeals the good time law cannot be sustained. That law relates only to rules for the government of the prison officials. The indeterminate sentence law simply substituted a new and different method of crediting good time to the convict. The good time law does not apply to one sentenced under the indeterminate sentence law or the reformatory act.

Under the motion for a new trial, numerous instructions are complained of, one of which, given by the court on its own motion, is as follows: "12. Even if you believe the prosecuting witness made a rush or attack upon the defendant when he came out of his...