Davis v. State

Citation152 Ind. 34, 51 N.E. 928
Case DateNovember 18, 1898
CourtSupreme Court of Indiana

152 Ind. 34
51 N.E. 928

DAVIS
v.
STATE.1

Supreme Court of Indiana.

Nov. 18, 1898.


Appeal from circuit court, Clark county; George H. D. Gibson, Judge.

John F. Davis was convicted of an assault with intent to murder, and he appeals. Reversed.


M. J. Stannard, for appellant. W. A. Ketcham, Merrill Moores, H. C. Montgomery, and Dickey & Aydelotte, for the State.

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 54 years.” On this verdict the circuit court rendered judgment that he be confined in the state prison not less than 2 and not

[51 N.E. 929]

more than 14 years, and for a 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, 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.” Rev. St. 1894, § 69; Rev. St. 1881, § 69; Horner's Rev. St. 1897, § 69. 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 law’ 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 the 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;Com. v. Mott, 21 Pick. 492;State v. Arlin, 39 N. H. 179;Mullen v. People, 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. Rev. St. 1843, p. 43; Const. art. 1, § 18. 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...

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16 practice notes
  • Haverstick v. State, No. 24727.
    • United States
    • Indiana Supreme Court of Indiana
    • 28 Abril 1925
    ...the record. And the court is only required to give instructions which are applicable to the evidence as well as the issue. Davis v. State, 152 Ind. 34, 38, 51 N. E. 928, 71 Am. St. Rep. 322. [5] Moreover it does not appear from the briefs of appellants that they asked an instruction underta......
  • Nuss v. State, No. 1--874A123
    • United States
    • Indiana Court of Appeals of Indiana
    • 5 Junio 1975
    ...as is set out in the last paragraph of Instruction No. 10. Our Supreme Court spoke of the use of a deadly weapon in Davis v. State (1898), 152 Ind. 34, 38, 51 N.E. 928, Nuss further claims the trial court erred by stating that if the jury finds that the defendant killed in self-defense, it ......
  • Loyd v. State
    • United States
    • Indiana Supreme Court of Indiana
    • 11 Enero 1980
    ...142 Ind. 288, 41 N.E. 595. This is no longer the accepted rule, Hill v. State, (1937) 212 Ind. 692, 11 N.E.2d 141; Davis v. State, (1898) 152 Ind. 34, 51 N.E. 928. Nevertheless, one who is assaulted in a manner that does not appear to threaten great bodily harm may not purposely kill in his......
  • Commonwealth v. Kalck
    • United States
    • United States State Supreme Court of Pennsylvania
    • 17 Marzo 1913
    ...629, 4 N. E. 81; Com. v. Brown, 167 Mass. 144, 45 N. E. 1; Miller v. State, 149 Ind. 607, 49 N. E. 894, 40 L. R. A. 109; Davis v. State, 152 Ind. 34, 51 N. E. 928, 71 Am. St. Rep. 322; People v. Hayes, 140 N. Y. 484, 35 N. E. 951, 23 L. R. A. 830, 37 Am. St. Rep. 572. These cases go on the ......
  • Request a trial to view additional results
16 cases
  • Haverstick v. State, No. 24727.
    • United States
    • Indiana Supreme Court of Indiana
    • 28 Abril 1925
    ...the record. And the court is only required to give instructions which are applicable to the evidence as well as the issue. Davis v. State, 152 Ind. 34, 38, 51 N. E. 928, 71 Am. St. Rep. 322. [5] Moreover it does not appear from the briefs of appellants that they asked an instruction underta......
  • Nuss v. State, No. 1--874A123
    • United States
    • Indiana Court of Appeals of Indiana
    • 5 Junio 1975
    ...as is set out in the last paragraph of Instruction No. 10. Our Supreme Court spoke of the use of a deadly weapon in Davis v. State (1898), 152 Ind. 34, 38, 51 N.E. 928, Nuss further claims the trial court erred by stating that if the jury finds that the defendant killed in self-defense, it ......
  • Loyd v. State
    • United States
    • Indiana Supreme Court of Indiana
    • 11 Enero 1980
    ...142 Ind. 288, 41 N.E. 595. This is no longer the accepted rule, Hill v. State, (1937) 212 Ind. 692, 11 N.E.2d 141; Davis v. State, (1898) 152 Ind. 34, 51 N.E. 928. Nevertheless, one who is assaulted in a manner that does not appear to threaten great bodily harm may not purposely kill in his......
  • Commonwealth v. Kalck
    • United States
    • United States State Supreme Court of Pennsylvania
    • 17 Marzo 1913
    ...629, 4 N. E. 81; Com. v. Brown, 167 Mass. 144, 45 N. E. 1; Miller v. State, 149 Ind. 607, 49 N. E. 894, 40 L. R. A. 109; Davis v. State, 152 Ind. 34, 51 N. E. 928, 71 Am. St. Rep. 322; People v. Hayes, 140 N. Y. 484, 35 N. E. 951, 23 L. R. A. 830, 37 Am. St. Rep. 572. These cases go on the ......
  • Request a trial to view additional results

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