Gingerich v. State

• Decision Date: 19 June 1950
• Docket Number: No. 28618,28618
• Citation: 228 Ind. 440,93 N.E.2d 180
• Parties: GINGERICH v. STATE.
• Court: Indiana Supreme Court

Page 180

93 N.E.2d 180

228 Ind. 440

GINGERICH v. STATE.

No. 28618.

Supreme Court of Indiana.

June 19, 1950.

Robert B. Hartzog, Goshen, Roscoe D. Wheat, Portland, James W. Grimes, Portland, for appellant.

J. Emmett McManamon, Atty. Gen., Charles F. O'Connor, Deputy Atty. Gen., Merl M. Wall, Deputy Atty. Gen., for appellee.

JASPER, Judge.

Appellant was charged by amended affidavit with refusing to send his son to public school under the compulsory school attendance law, § 28-505f, Burns' 1948 Replacement Supp., Acts 1949, ch. 238, § 5, p. 789. The cause was submitted to the court on a plea of not guilty; and finding and judgment that appellant be fined $200 followed. The amended affidavit, omitting the formal parts, is as follows: 'Ruth Glassburn swears she is informed and believes that Chester H. Gingerich, on or about the 17th day of March, 1949, at and in the County of Jay, State of Indiana, being then and there the father of Joseph Gingerich, a child then and there more than the age of seven years but less than the age of fifteen years inclusive and residing in Jay County, State of Indiana, did then and there, he, the said Chester H. Gingerich, unlawfully fail, neglect or refuse to send the said Joseph Gingerich to public school then and there in session, during the full term thereof, although he, the said Chester H. Gingerich, did not then and there demonstrate and show that the said Joseph Gingerich was then and there provided with instruction equivalent to that given in such school, and although he, the said Chester H. Gingerich, did not then and there fail, neglect or refuse to send the said Joseph Gingerich to public school by reason of the mental or physical incapacity of the said Joseph Gingerich, contrary to the form of the Statute in such cases made and provided and against the peace and dignity of the State of Indiana.'

Appellant assigns as error, among others, the overruling of his plea in abatement to the amended affidavit.

The original affidavit and the amended affidavit were filed under the act of 1949, Acts 1949, ch. 238, § 5, p. 789, § 28-505f, Burns' 1948 Replacement Supp. Section one of the act, § 28-505b, Burns' 1948 Replacement Supp., defines 'child' as follows:

'As used in this act, the word 'child' shall mean and include every child in the state of Indiana between the ages of seven and fifteen years inclusive (our italics) except:

'(a) A child excused from school attendance under and by virtue of any other law of this state, but only during the time when such excuse is operative.

'(b) A child who is physically or mentally incapacitated from attending school as evidenced by the certificate of a physician holding an unlimited license to practice medicine in Indiana.'

Section 5 of the act, § 28-505f, Burns' 1948 Replacement Supp., provides: 'It shall be unlawful for any parent to fail, neglect or refuse to send any child to public school during the full term thereof, unless such parent shall demonstrate and show that such child is being provided with instruction equivalent to that given in such public school.'

The plea in abatement, omitting the formal parts, is as follows:

'That this defendant is charged by the State of Indiana by amended affidavit with violation of the recent act of the s949 legislature, known as Senate Bill No. 249 dated February 11, 1949, relative to and concerning compulsory school attendance and providing penalty. That said act defines the word 'child' to mean and include every child in the State of Indiana between the ages of 7 and 15 years inclusive. The amended affidavit in substance charges the defendant with unlawfully failing, neglecting or refusing to send Joseph Gingerich, son of the defendant, and being then and there more than the age of seven but less than the age of fifteen years inclusive, to public school. The amended affidavit was filed on May 23rd, 1949, and the crime of the alleged crime specified is March 17th, 1949.

'That Joseph Gingerich, son of the defendant herein, was born on June 25th, 1933, and that on June 25th, 1948, said child reached his fifteenth birthday anniversary. That on and as of March 17th, 1949, the date the amended affidavit alleges a crime, he was 15 years 8 months and 21 days old, and that he was 15 years 10 months and 28 days old on the date the amended affidavit was filed and sworn to before the prosecuting attorney.

'Wherefore defendant demands that said criminal action against him abate for the reason that said Joseph Gingerich was on the date the crime is charged, and on the dates the original and amended affidavits were filed and sworn, a child more than 15 years of age, and as such does not fall within the age group alleged in the affidavit or in the statute, and therefore the defendant has committed no crime.'

The plea in abatement was submitted to the court and evidence was heard, which evidence was undisputed and supported every material allegation. The affidavit and plea in abatement, supported by the evidence, raise the question of the construction of the statute as to whether or not a child who has passed his fifteenth anniversary of age comes within § 28-505b, Burns' 1948 Replacement Supp. This was enacted in 1949 and superseded and took the place of § 28-505, Burns' 1948 Replacement. The pertinent part of § 28-505, Burns' 1948 Replacement, reads as follows: 'Unless otherwise provided herein, every child between the ages of seven (7) and sixteen (16) years shall attend public school or other school taught in the English language. * * *'

The rules for construing a statute are no different where a new statute is enacted and where a statute is amended. The court may look to the former acts in either case for construction. The court said, in Dreves Inc., v. Oslo School Twp. of Elkhart, 1940, 217 Ind. 388, 395, 28 N.E.2d 252, 254, 128 A.L.R. 1405, 1409: 'The cases announcing this rule, however, as well as all other cases dealing with statutory construction, recognize the fundamental rule that the court, in construing a statute, must first seek to discover the legislative intent and that all other rules of construction are in aid of this fundamental rule. In determining the intention of the legislature 'the court will look to each and every part of the statute, to the circumstances under which it was enacted, to the whole law upon the subject, if any, to other statutes upon the same or relative subjects, whether in force or repealed, to contemporaneous legislative history, and to the evils and mischiefs to be remedied'. Haynes Automobile Co. v. City of Kokomo, 1917, 186 Ind. 9, 13, 114 N.E. 758, 759.'

This court has held that it is fundamental that penal statutes are to be strictly construed, and may not be extended by intent. Loftus v. State, 1944, 222 Ind. 139, 52 N.E.2d 488; Caudill v. State, 1946, 224 Ind. 531, 69 N.E.2d 549. And, as said in Manners v. State, 1936, 210 Ind. 648, 654, 5 N.E.2d 300, 303: 'It is fundamental that penal statutes are to be strictly construed; that a statute in derogation of a common right and highly penal in character is only to be applied to cases clearly within its provisions; that penalties may not be created by construction, but must be avoided by construction unless they are brought within the letter and the necessary meaning of the act creating the penalty. This requires that where there is ambiguity it must be resolved against the penalty, and only those cases brought within the statute that are clearly within its meaning and intention.'

This court has further held that it is a rule of statutory construction that a change of phraseology from that of the original act will raise the presumption that a change of meaning was also intended. Chism v. State, 1932, 203 Ind. 241, 179 N.E. 718.

We find two conflicting lines of authority which interpreted a similar statute to our present one, the first of which is Michigan. The statute construed in the case of Jackson v. Mason, 1906, 145 Mich. 338, 339, 340, 108 N.W. 697, 698, is as follows: 'Every parent, guardian, or other person in the state of Michigan having control and charge of any child or children between and including (our italics) the ages of seven and fifteen years, shall be required to send such child or children to the public schools during the entire school year. * * *' Pub.Acts 1905, No. 200, § 1.

This repealed a statute which provided: '* * * between the ages of eight and fifteen years, and in cities between the ages of seven and fifteen years.' Pub.Acts 1901, No. 83.

The court said:

'The provision of the act repealed by this act relative to the age limit was, '* * * between the ages of eight and fifteen years, and in cities...