Miller v. State

• Citation: 49 N.E. 894, 149 Ind. 607
• Case Date: March 08, 1898
• Court: Supreme Court of Indiana

149 Ind. 607
49 N.E. 894

MILLER
v.
STATE.

Supreme Court of Indiana.

March 8, 1898.

Appeal from circuit court, St. Joseph county; Lucius Hubbard, Judge.

George Miller was convicted of burglary, and he appeals. Affirmed.

Howard, C. J., and Jordan, J., dissenting.

Talbott & Talbott and F. M. Jackson, for appellant. Thos. W. Slick, Wm. A. Ketcham, and Merrill Moores, for the State.

McCABE, J.

The appellant was charged in the indictment with burglary and larceny, on May 3, 1897. On a trial of the charge, the jury found him guilty of burglary by their verdict, reading thus: “We, the jury, find the defendant, George Miller, guilty of burglary, as charged in the indictment, and that his age is 18 years. John Valentine, Foreman.” And the following judgment was rendered upon said verdict, to wit: “And the defendant, being asked if he has any legal cause to show why the judgment of the court should not be pronounced upon the verdict of the jury, stands mute; and thereupon it is considered and adjudged by the court that the defendant be, and is hereby, sentenced to the custody of the board of managers of the Indiana Reformatory or at such place as may be designated by said board of managers, as guilty of the crime of burglary, and that he be confined therein for a term of not less than one year or more than fourteen years, as a punishment for said offense, according to the rules and regulations established by such board of managers, and that the sheriff of this county is charged with the execution of this sentence.” The errors assigned call in question the action of the circuit court in overruling appellant's motion for a new trial, and in refusing appellant's request to be furnished with a longhand transcript of the evidence given in said cause at the expense of St. Joseph county. The ground specified in the motion for a new trial is that the verdict is contrary to law.

The objection to the verdict would perhaps be fatal, in that it would be contrary to and unauthorized by law as it stood prior to April 1, 1897, because it does not “state * * * the amount of fine and the punishment to be inflicted.” Rev. St. 1894, § 1906 (Horner's Rev. St. 1897, § 1837; Rev. St. 1881, § 1837). But it is contended on behalf of the state that the verdict is not contrary to, and is authorized by, law, to wit, section 8 of the reformatory act, approved February 26, 1897 (Acts 1897, p. 69). That act does authorize just such a verdict and judgment in such a case. The learned counsel

[49 N.E. 895]

for appellant contend, however, that so much of the reformatory act as authorizes such a verdict and judgment is unconstitutional. The section in question reads thus: “In all cases of felony tried hereafter before any court or jury in this state, if the court or jury find the person on trial guilty of a felony, it shall be the duty of such court or jury to further find and state whether or not the defendant is over sixteen (16) years of age and less than thirty (30) years of age. If such defendant be found to be between said ages, and he be not guilty of treason or murder in the first or second degree, it shall only be stated in the finding of the court or verdict of the jury, that the defendant is guilty of the crime charged, naming it, and that his age is that found by it or them to be his true age, and the court trying such person shall sentence him to the custody of the board of managers of the Indiana Reformatory to be confined at the Indiana Reformatory or at such place as may be designated by such board of managers where he can be most safely and properly cared for, as guilty of the crime found in such finding or verdict, and that he be confined therein for a term not less than the minimum time prescribed by the statutes of this state, as a punishment for such offense, and not more than the maximum time prescribed by such statutes therefor, subject to the rules and regulations established by such board of managers, and it shall be the duty of the board of managers of said reformatory to receive all such convicted persons, and all existing laws requiring the courts of this state to sentence such persons to the penitentiaries or prisons of this state are hereby modified and changed so as to make it the duty of such courts to sentence such prisoners to the Indiana Reformatory. The board of managers may terminate such imprisonment when the rules and requirements of such reformatory have been lived up to and fulfilled, according to the provisions of this act.” The next section makes it the duty of the clerk of the court in which the case is tried, where there is a conviction, to send along with the commitment a record containing a copy of the indictment or information filed in the case, the name and residence of the judge presiding at the trial, the names of the jurors and witnesses serving at the trial, with a statement of any fact or facts which the presiding judge may deem important or necessary for the full comprehension of the case. Section 11 provides that “the said board of managers shall have power to establish rules and regulations under which prisoners in the reformatory may be allowed to go upon parole outside the reformatory building and enclosure, but to remain, while on parole, in the legal custody and under control of the board of managers and subject at any time to be taken back within the enclosure of said reformatory; and full power to enforce such rules and regulations to retake and imprison any inmate, so upon parole, is hereby conferred upon said board, whose order, certified by its secretary, and signed by its president, with the seal of the reformatory attached thereto, shall be a sufficient warrant for the officers named in it to authorize such officer to return to actual custody any conditionally released or paroled prisoner: * * * provided, that no prisoner shall be released on parole until the said board of managers shall have satisfactory evidence that arrangements have been made for his honorable and useful employment for at least six months while upon parole, in some suitable occupation.” The twelfth section provides for certain rules by which the reformation is to be sought by the board of managers, among which is a record in which is to be entered every fact connected with the history of every prisoner when he enters the reformatory, together with his subsequent conduct affecting his standing, and any facts or personal history which may come to the knowledge of the general superintendent officially, bearing upon the question of parole or final release of the prisoner. And the section then provides: “And it is hereby provided that whenever in the opinion of the board of managers any prisoner on parole has violated the conditions of his parole or conditional release, by whatever name, as affixed by the managers, he shall by a formal order entered in the manager's proceedings, be declared a delinquent, and shall thereafter be treated as an escaped prisoner owing service to the state and shall be liable when arrested to serve out the unexpired term of his maximum possible imprisonment, and the time from the date of his declared delinquency to the date of his arrest shall not be counted as any part or portion of time served.” Section 13 provides that “it shall be the duty of the general superintendent to keep in communication, as far as possible with all prisoners who are upon parole, and when in his opinion, any prisoner has for one year so conducted himself as to merit his discharge, and has given evidence that is deemed reliable and trustworthy, that he will remain at liberty without violating the law, and that his final release is not incompatible with the welfare of society, the general superintendent shall make a certificate to that effect to the board of managers, and, after written notice to all of the managers, the board shall, at the next meeting thereafter, consider the case of the prisoner so presented; and when said board shall find that said prisoner has so done, he shall be entitled to his final discharge.”

It is contended on behalf of appellant, first, that these provisions violate section 16 of article 1 of the bill of rights in our constitution, providing that “cruel and unusual punishment shall not be inflicted. All penalties shall be proportioned to the nature of the offense.” Burns' Rev. St. 1894, § 61 (Rev. St. 1881, §

[49 N.E. 896]

61; Horner's Rev. St. 1897, § 61). Frequent attempts have been made in this court to reverse judgments in criminal cases because the punishment adjudged was cruel and excessive. But it has invariably been held that, no matter how harsh and severe it might seem to this court, yet, if it was within the limits prescribed by statute for the punishment of such crimes, this court could not interfere nor reverse the judgment. Siberry v. State (Ind. Sup.) 47 N. E. 458;Ledgerwood v. State, 134 Ind. 91, 33 N. E. 631;McLaughlin v. State, 45 Ind. 338;McCulley v. State, 62 Ind. 428;Shields v. State (at this term) 49 N. E. 351. In none of these cases was the validity of the statute questioned. In the last case cited, this court said: “It is also urged as a reason for reversal that the punishment is excessive. The only limitations to the power of the legislature to fix the punishment for crimes are those imposed by the constitution of this state and the United States. Section 16 of article 1 of the constitution of this state, which provides that cruel and unusual punishments shall not be inflicted, has reference to the statute fixing the punishment, and not to the punishment assessed by the jury within the limits fixed by the statute. 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...