Diamond v. State
| Decision Date | 31 October 1924 |
| Docket Number | No. 24467.,24467. |
| Citation | 144 N.E. 250,195 Ind. 285 |
| Parties | DIAMOND v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Porter County.
On petition for stay of execution of Harry Diamond. Petition overruled.
For former opinion, see 144 N. E. 466.
This court affirmed a judgment of the Porter circuit court by which appellant was sentenced to death on June 24, 1924, and afterwards denied his petition for rehearing on October 14, 1924. In the meantime it had entered an order staying execution of the death sentence until November 14, 1924. His attorneys have filed a petition supported by affidavits, stating that, since the entry of judgment and the imposition of the sentence of death, appellant has become and is now insane, and is incapable of realizing that he is under sentence of death, to be executed on November 14, 1924, unless he shall show cause why execution should not be done at that time, and praying that this court will direct and authorize the circuit court of Porter county to receive and act upon a petition on behalf of appellant, asking that said court, with the aid of a jury, shall try and determine the question whether or not he has so become insane.
The powers of the government are divided into three separate departments; the legislative, the executive, including the administrative, and the judicial; and no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in the Constitution expressly provided. Const. Ind. art. 3, § 96, Burns' 1914.
The Governor shall have the power to grant reprieves, commutations and pardons, after conviction, for all offenses, except treason and cases of impeachment, subject to such regulations as may be provided by law. Section 17, art. 5, Ind. Const. § 143, Burns' 1914.
The Supreme Court has power to stay the execution of a capital sentence for such a period of time as is required to give an opportunity to examine and decide the questions presented by the record, on appeal from the judgment imposing such sentence; this being a necessary attribute of the power to hear and decide appeals. Parker v. State, 135 Ind. 534, 35 N. E. 179, 23 L. R. A. 859. But, except, in the exercise of its power to hear appeals and otherwise to review the action of trial courts, the Supreme Court cannot stay the execution of a judgment and it cannot grant reprieves for any purpose; that power belonging exclusively to the Governor.
Counsel for the petitioner cite the case of People v. Geary, 298 Ill. 236, 131 N. E. 652, in which the Supreme Court of Illinois construed a statute which provided that if, after judgment and before execution of the sentence, a person convicted of a capital offense should become lunatic or insane, the execution of the sentence of death should be stayed until the recovery of such person from the insanity or lunacy; and that in such a case it should be the duty of the court to impanel a jury to try the question whether the accused be, at the time of the impaneling, insane or lunatic (section 13 of division 2, par. 285, Cr. Code Ill.; Hurd's Stat., p. 1016). There is no such statute in the state of Indiana. The one which most nearly resembles it is chapter 103, p. 174, Acts 1905 (sections 2177-2180, Burns' 1914). But that statute does not give the person found guilty of a capital offense any absolute right to a trial by jury of the question whether he has become insane...
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