Hicks v. The State

• Decision Date: 19 April 1898
• Docket Number: 18,427
• Citation: 50 N.E. 27,150 Ind. 293
• Parties: Hicks v. The State
• Court: Indiana Supreme Court

50 N.E. 27

150 Ind. 293

Hicks v. The State

No. 18,427

Supreme Court of Indiana

April 19, 1898

From the Floyd Circuit Court.

Affirmed.

Kelso & Kelso, for appellant.

W. A Ketcham, Attorney-General, W. C. Utz, Merrill Moores, A. E Dickey and W. M. Aydelotte, for State.

OPINION

McCabe, J.

The appellant was indicted in the Floyd Circuit Court for bigamy. On a trial of the charge by the court without a jury, he was found guilty, and his punishment fixed at a fine of one dollar, and confinement in the jail of the county for three months, and judgment was rendered accordingly. The record and assignment of errors are sufficient to present for decision the question discussed by appellant's counsel, namely whether the law by virtue of which it is claimed by them appellant was convicted was not an ex post facto law as to appellant's offense, and therefore unconstitutional. The offense was committed, as shown both by the indictment and appellant's own special plea of confession and avoidance, on April 8, 1896. But the indictment was not returned until May 15, 1897, after the indeterminate sentence law of 1897 took effect. Acts 1897, p. 69. Appellant's learned counsel contend that that law changed the penalty prescribed for all felonies other than treason and murder in the first and second degrees, and hence as to the offense here charged, such punishment is ex post facto, and violative of the constitution. Punishment may be lessened, but it cannot be increased constitutionally by statute enacted after the commission of the offense. Dinckerlocker v. Marsh, 75 Ind. 548; Strong v. State, 1 Blackf. 193; Commonwealth v. Mott, 21 Pick. 492; State v. Arlin, 39 N.H. 179; Mullen v. People, 31 Ill. 444. Assuming that the change effected in the punishment of that class of felonies falling within the indeterminate sentence law, by virtue thereof is such as to render it violative of the constitution as to offenses committed before its enactment and prosecuted thereafter, and assuming that the offense here involved falls within that law, appellant's counsel, to make sure of no escape from the conclusion they seek, go into an elaborate and mysterious, if not ingenious, argument to the effect that there is no saving clause or statute left standing and in force by which such an offense, committed before the enactment of the law in question, as in the case here, can be thereafter prosecuted and punished according to the old law. We find it quite unnecessary to go into an examination of the abstruse and incomprehensible questions so extensively urged upon our attention, because the assumptions of counsel above mentioned we find have no foundation whatever. It may be safely conceded that both the indeterminate sentence law and the reformatory act have the effect of modifying or changing the punishment of that class of felonies falling within their respective provisions, without affecting the question here involved. And assuming, without deciding, that the change in such punishment is of such a character as to offenses committed before their enactment respectively, as to make the same ex post facto, still that cannot affect the question here involved, unless the felony here involved falls within the provisions of the indeterminate sentence law as appellant's counsel have erroneously assumed that it does, or the reformatory act. Section 2075, Burns' R. S. 1894 (1989, Horner's R. S. 1897), defines bigamy and prescribes the punishment of imprisonment "in the state prison not exceeding five nor less than two years, or be fined not exceeding one thousand dollars, and be imprisoned in the county jail not less than three nor more than six months." This is a felony according to our statutory classification of public offenses. Because it is provided by the code of criminal procedure that: "All crimes and public offenses which may be punished with death or imprisonment in the state prison shall be denominated felonies, and all other offenses shall be denominated misdemeanors." Section 1642, Burns' R. S. 1894 (1573, Horner's R. S. 1897). Appellant's counsel in reaching the assumption that this case falls within the indeterminate sentence law, have assumed, without any foundation whatever, that the appellant was over thirty years of age. There is not a thing in the record showing what the age of appellant was when he was convicted. Without a finding by the court or jury trying the facts what the age of the accused is, there is no means of knowing whether the case falls within the provisions of the indeterminate sentence law or the reformatory act, if it were otherwise within the purview of either, because the former is applicable only to male offenders thirty years of age or over, while the latter exclusively applies to male offenders between sixteen and thirty years of age. So that we must determine whether the crime of which appellant was convicted falls within the purview of either act. Evidently the trial court was of the opinion that it did not fall within either or the court would have found what appellant's age was. Evidently the legislature did not intend to include within the indeterminate sentence law or the Indiana reformatory act any felony where adequate and proper punishment is less than imprisonment in the State prison, because otherwise they must have intended, in cases like the present, to substitute imprisonment in the State prison or the Indiana...