Emery v. State
| Decision Date | 26 September 1973 |
| Docket Number | No. 672S70,672S70 |
| Citation | 301 N.E.2d 369,261 Ind. 211 |
| Parties | Edward H. EMERY, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Harriette Bailey Conn, Public Defender, Carr L. Darden, Sr., Deputy Public Defender, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., A. Frank Gleaves, III, Deputy Atty. Gen., Indianapolis, for appellee.
This is an appeal from the denial of relief on a postconviction remedy petition.
On September 15, 1966, appellant was found guilty of murder in the second degree and sentenced to life imprisonment. The conviction was affirmed by this Court on April 25, 1968. See Emery v. State (1968), 250 Ind. 500, 236 N.E.2d 28, 14 Ind.Dec. 128.
The appellant's sole contention of error in this appeal is that the sentence of life imprisonment for second degree murder is unconstitutional.
Appellant argues that his sentence violates Article I, Section 16 of the Indiana Constitution and the Eighth Amendment to the Constitution of the United States in that it imposes cruel and unusual punishment, i.e. a penalty not in proportion to the nature of the offense.
At the time of appellant's conviction the definition and penalty for first degree murder were as follows:
Burns' Ind.Stat.Ann., 1956 Repl., § 10--3401, IC 1971, 35--13--4--1.
The penalty for second degree murder at the time of appellant's conviction was as follows:
Burns' Ind.Stat.Ann., 1956 Repl., § 10--3404.
The statute defining second degree murder has been amended to read as follows:
IC 35--1--54--1, Burns' Ind.Stat.Ann., 1972 Supp., § 10--3404.
Due to a recent decision by the United States Supreme Court, Furman v. Georgia (1972), 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, the appellant assumes that there is no longer a death penalty anywhere in the United States. For the purposes of deciding this case, we will assume the appellant's position is correct and that the death penalty is no longer available for first degree murder.
It is appellant's argument that the second...
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