Mellot v. State

• Decision Date: 30 March 1942
• Docket Number: 27656.
• Citation: 40 N.E.2d 655,219 Ind. 646
• Parties: MELLOT v. STATE.
• Court: Indiana Supreme Court

40 N.E.2d 655

219 Ind. 646

MELLOT v. STATE.

No. 27656.

Supreme Court of Indiana

March 30, 1942

Appeal from Putnam Circuit Court; Marshall D. Abrams Judge.

James & Allee, of Greencastle, for appellant.

George N. Beamer, Atty. Gen., Rexell A. Boyd, Pros. Atty., of Greencastle, and Norman E. Duke, Dep. Atty. Gen., for appellee.

ROLL Judge.

Appellant was prosecuted by affidavit charging that he unlawfully escaped from the Indiana State Farm. The prosecution was under § 10-1808, Burns' St.1933, Sec. 2651-1 Baldwin's Ind. Statute 1934.

The record shows that on the 11th day of September 1940, in the Circuit Court of Elkhart County, appellant was convicted of the crime of issuing fraudulent checks. The judgment of the court was that he be imprisoned in the Indiana State Prison for a period of not less than one year nor more than five years and fined in the sum of $100. Under the above judgment, appellant was committed to and confined in the Indiana State Prison.

Afterwards on November 13, 1940, appellant was transferred from the Indiana State Prison to the Indiana State Farm. This transfer was made pursuant to an order of the Department of Public Welfare as provided by § 52-1104, Sec. 14078-5, Baldwin's Ind. Statute Supp.1937, Acts 1936, Spec.Sess., Ch. 3, § 5 Subdiv. (o); that appellant was held in said Indiana State Farm by virtue of said transfer and by no other authority.

About sixteen days after appellant was transferred to the Indiana State Farm, he went to the office and demanded that he be transferred back to the State Prison at Michigan City, because he was not satisfied with the work assigned to him and that he didn't like the place. He was informed that he could not be transferred back to the State Prison. A short time thereafter, appellant left the State Farm without leave. After his absence was discovered, a search was made but he was not found, and the present affidavit was filed in the Putnam Circuit Court, charging appellant with unlawfully escaping from the State Farm.

The record further shows that after appellant left the State Farm, he 'hitchhicked' back to Michigan City, and reported to the Warden of the Indiana State Prison and told him that he had requested to be re-transferred and was told that they had no authority to transfer him back to the State Prison, and for that reason he came back himself. He was returned to the Indiana State Farm at his own request, so that he could be tried upon the charge of having escaped from the State Farm, which had been filed and was then pending in the Putnam Circuit Court.

Upon the affidavit and the facts as above set out, appellant was convicted in the Putnam Circuit Court for the crime of unlawfully escaping from the Indiana State Farm, as defined in § 10-1808, Burns' St.1933, Sec. 2651-1, Baldwin's Ind. Statute 1934.

The only error assigned is the overruling of appellant's motion for a new trial on the ground that the verdict of the jury is contrary to law. Under this assigned error, appellant contends that § 10-1808, supra, applies only to persons sentenced to the Indiana State Farm and does not apply to the inmates who are held in custody by virtue of a transfer made pursuant to the order of the State Welfare Board. Said § 10-1808, provides as follows: 'Any person sentenced to the Indiana State Farm, who shall escape therefrom, shall be deemed guilty of a felony, and upon conviction, shall be sentenced to the state prison for a period of not less than one (1) nor more than five (5) years.'

Subsection (o) of Section 5, Chapter 3, Acts 1936, Special Session, Page 19, provides: 'Classify the patients and inmates of the respective institutions of the state and transfer patients and inmates from one state institution to another, at will, when, in its discretion, it is deemed advisable for the welfare of the patient or inmate, but no patient or inmate of a benevolent institution shall be transferred to a penal or correctional institution except in carrying out a previous commitment of a court of competent jurisdiction.'

The only contention urged by appellant is that the provisions of the first above statute apply only to the inmates of the Indiana State Farm who were sentenced to serve in said institution by the court who pronounced the original judgment. We are of the opinion appellant cannot successfully maintain this position.

The amount of punishment for the commission of a crime is a function of the legislature and not a judicial function performed by the court. In the case of Miller v. State, 1897, 149 Ind. 607, 49 N.E. 894, 896, 40 L.R.A. 109, the defendant made the contention that the punishment prescribed by the legislature for the crime for which he was convicted was cruel and unusual punishment. In discussing the constitutional provision with reference to cruel and unusual punishment the court said: 'If the statute fixing the punishment is not in violation of said section of the constitution, then any punishment assessed by the court or jury within the limits fixed by the statute cannot be adjudged excessive by this court, for the reason that the power to declare what punishment may be assessed against those convicted of crime is not a judicial power, but a legislative power, controlled only by the provisions of the constitution.'

That the fixing of the amount of punishment for a designated crime is within the power of the legislature within constitutional limits has not been seriously challenged in this state. Likewise, the place of punishment is also a legislative or administrative function. The legislature of Indiana has prescribed in said stat...