Ledgerwood v. State

Citation33 N.E. 631,134 Ind. 81
Decision Date23 February 1893
Docket Number16,505
PartiesLedgerwood v. The State
CourtSupreme Court of Indiana

From the Daviess Circuit Court.

The judgment is affirmed.

T. M Clarke, C. S. Dobbins and A. J. Padgett, for appellant.

A. G Smith, Attorney-General, for the State.


McCabe, J.

The appellant was convicted by the circuit court on a plea of guilty on an indictment charging him and Samuel Harbin with arson, and each was sentenced to the State's prison for the period of seventeen years, and the court fined each of them one hundred dollars, and rendered judgment accordingly. The appellant alone appeals.

The errors assigned are:

1 and 2. That the indictment does not state facts sufficient to constitute a public offense.

3. That the court had no jurisdiction of the subject.

4. That the court had no jurisdiction over the person of appellant.

5. That there was error in overruling appellant's motion to be discharged.

6. That there was error in permitting the State to file counter-motions and affidavits to appellant's motion for discharge.

7. That there was error in overruling the motion to strike out parts of said counter-affidavits.

8. That there was error in overruling appellant's motion in arrest of judgment.

9. That there was error in overruling appellant's motion for a new trial.

There were two counts in the indictment. Therefore, if either count was sufficient, there was no error in overruling the motion in arrest of judgment. Bryant v. State, 106 Ind. 549, 7 N.E. 217.

The first count reads as follows, omitting the formal part "That Bazil Ledgerwood and Samuel Harbin, on the 7th day of October, 1891, at and in the county of Daviess, in the State of Indiana, did then and there unlawfully, wilfully, maliciously, and feloniously set on fire and attempt to burn down and destroy the county courthouse, situate in the city of Washington, in Daviess county, in the State of Indiana, which county courthouse was then and there the property of Daviess county, and then and there of the value of fifty thousand dollars."

We think this count is sufficient in its statement of the facts constituting the offense defined by section 1927, R. S. 1881, as amended by the act approved March 9th, 1891, to withstand a motion in arrest. Acts 1891, p. 402.

It is insisted by appellant's counsel that the latter act is invalid, because it does not define the crime of arson, and in support of that contention they cite the statute which provides that "Crimes and misdemeanors shall be defined and punishment therefor fixed by statutes of this State, and not otherwise." Section 237, R. S. 1881.

This statute was enacted in 1852 as the second section of an act entitled "An act declaring the law governing this State" approved May 31st, 1852. Section 605, 1 R. S. 1876. All that part of the act relating to what laws were in force, and especially that part adopting the English common law, with certain exceptions, had substantially been in force in this State before. Indeed, the English common law, with the exceptions mentioned, had been adopted in this state as far back as the year 1795 by the Governor and judges of the then Territory, and that provision was substantially reenacted by the Territorial Legislature in 1807, and has been substantially reenacted at every revision of our statute since that time. Stevenson v. Cloud, 5 Blackf. 92. But in the act of 1852, above referred to, the provision as to the definition of crimes and misdemeanors was added for the first time, it being the first provision of the kind ever adopted in this State.

In support of their construction of the statute above cited, appellant's counsel cite Rosenbaum v. State, 4 Ind. 599; Smoot v. State, 18 Ind. 18; State v. President, etc., Ohio, etc., R. R. Co., 23 Ind. 362; State v. Johnson, 69 Ind. 85; Stephens v. State, 107 Ind. 185, 8 N.E. 94.

We have examined these cases, and find them not at all in point, for reasons so obvious that further comment on them is unnecessary.

The appellant's attorneys further seek to support their contention by citing Hackney v. State, 8 Ind. 494; Jennings v. State, 16 Ind. 335, and Marvin v. State, 19 Ind. 181. It must be conceded that these cases all directly support appellant's contention, and hold that a statute that does not define a public offense with some degree of minuteness is void because not in conformity to the first statute above quoted. But these cases, and others like them, were all overruled by this court in Wall v. State, 23 Ind. 150. That case has been followed by an ununbroken line of decisions by this court until the present time. But the ground upon which Frazer, Judge, speaking for the whole court, placed the decision in that case, has given rise to some confusion as to the real condition of our criminal code. That able jurist in that case said "That the Legislature can not in such a matter impose limits or restrictions upon its own future action, and that when two statutes are inconsistent, the last enactment stands as the law, are very plain propositions, which we presume will never be controverted. It follows that the act of May 31st, if in conflict with the act of June 10th (which was the date of the enactment of the criminal code of 1852), is so far repealed by the latter act. To hold that the Legislature may, by mere exercise of legislative power, say what a future Legislature may or may not do, would be but to declare that the whole legislative power of the government may be lawfully annihilated, and the government summarily brought to an end by the action of one of its departments."

While the principle thus announced was correct in the abstract, yet it was not applicable to the case, and did not furnish the true and real reason that made the conclusion reached in the case sound and good law. The court went on to hold, that inasmuch as the statute above quoted was enacted before the criminal statute then in question was enacted, which it was complained did not define the crime sufficiently; that the last act, the criminal statute, in so far as it conflicted with the first, operated as a repeal of the statute above quoted.

As before stated, this decision has been followed by a large number of cases in which the same reason is given for the ruling, and, finally, in Hood v. State, 56 Ind. 263, and Ardery v. State, 56 Ind. 328, it was held that the section of the statute above quoted was repealed by the act creating crimes and misdemeanors. And though that section has not since been reenacted by the Legislature, and the decisions of this court in Hood v. State, supra, and Ardery v. State, supra, have not been overruled, this court has, in Jones v. State, 59 Ind. 229, and Stephens v. State, 107 Ind. 185, 8 N.E. 94, said of this section, that "That provision of law still continues in force." Other cases, perhaps, make the same declaration. How such a conclusion is reached neither of the learned judges, Howk and Niblack, delivering the opinions, respectively, in those cases, tells us. The truth is, the long line of cases culminating in the two cases in 56 Ind., supra, not being overruled, and the statute therein held to be repealed, never having been reenacted, it is difficult to see how it still remained in force.

In the case in 107 Ind., supra, Niblack, J., cites in support of the opinion Hackney v. State, supra, which, as we have seen, had long before been overruled, and, as we now hold, correctly overruled. The inevitable result is, if the statute mentioned has been repealed, as this court held in the cases in 56 Ind., supra, it makes a great difference in our criminal law. With that statute repealed, instead of public offences being, as is generally supposed, of statutory creation exclusively, we have all common law offences as well as those of statutory origin as parts of our criminal law.

Such a result as that, it is well understood, is very undesirable with the courts, the legal profession, and the people. This undesirable result has been brought about by assigning a wrong reason for a right decision, in Wall v. State, supra, and following that reason to its legitimate result, in the subsequent cases. The section of the statute in question was never intended, by the Legislature that enacted it, to place a restriction upon the action of future Legislatures, or even upon itself, as to the manner of defining crimes and misdemeanors. This is apparent when we take into consideration the history of the whole act in which this provision is found and the evils sought to be remedied by the provision.

As we have already seen, that part of the act adopting the English common law, which was enacted by the Governor and judges of the Indiana Territory in 1795, and reenacted in all the revisions of our statutes substantially as it now is, until 1852, and then for the first time the provision in question was added to that act. Prior to that time the common law as to crimes and misdemeanors was in force because it was so enacted by adopting the common law by the legislative authority of the State without exception or limitation as to crimes and misdemeanors. State v. Bertheol, 6 Blackf. 474.

It was undoubtedly the intention of the Legislature in 1852, by adding the provision under consideration to the act adopting the common law, to adopt a new and different system of criminal law from that which had formerly prevailed; it was the intention to modify the act adopting the common law so as not to adopt that part of it relating to crimes and misdemeanors. It was the...

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