Paneitz v. State
| Decision Date | 17 February 1965 |
| Docket Number | No. 30470,30470 |
| Citation | 204 N.E.2d 350,246 Ind. 418 |
| Parties | Harold PANEITZ, Appellant, v. STSTE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
William K. Bennett, Lafayette, for appellant.
John Dillon, Atty. Gen., Carl Van Dorn, Asst. Atty. Gen., for appellee.
Appellant was charged by affidavit with the offense of vehicle taking and with being an habitual criminal. He was found guilty of both charges and was sentenced to be imprisoned in the Indiana State Prison for a term of not less than one year nor more than ten years for the offense of vehicle taking; and for being an habitual criminal, he was sentenced to be imprisoned in the Indiana State Prison for life.
Appellant's only assignment of error is the overruling of his motion for new trial. He argues that the conviction of vehicle taking as defined in Burns' Ind.Stat., Sec. 10-3011, 1956 Replacement, is not a felony and that therefore the habitual criminal statute cannot be invoked. The vehicle taking statute under which appellant was convicted, Burns' Ind.Stat., Sec. 10-3011, 1956 Replacement, supra, provides that:
'Whoever takes possession or assumes control of any vehicle of any character whatsoever, which vehicle is the property of another, and uses, drives, runs, or operates such vehicle without first procuring the consent of the owner thereof, or whoever accompanies any person or persons while unlawfully using, driving, running, or operating any vehicle, as above defined, with the knowledge that the possession and the control of the vehicle by the person or persons so using, driving, running, or operating the same is without the consent of the owner thereof, shall be guilty of vehicle taking and, on conviction thereof, shall be imprisoned not less than one year nor more than ten years and be disfranchised and rendered incapable of holding any office of trust or profit for any determinate period, or, in the discretion of the court or jury, may be imprisoned in the county jail or the Indiana State Farm, or in the Indiana Woman's Prison, for any determinate period not more than one year, to which may be added any fine not exceeding five hundred dollars [$500].'
Appellant claims that since the above statute fails to define the crime as a felony, and, since it does not specifically provide for imprisonment in the State Prison, the offense then is a misdemeanor which is not sufficient to sustain a finding that the appellant is an habitual criminal, for, as it is well known, Burns' Ind.Stat., 9-2207, 1956 Replacement, which defines the status of an habitual criminal, requires that one be convicted for three felonies before imprisonment for life is justifiable.
After a careful examination of the pertinent statutes and authorities, we feel that the appellant's contention is without merit.
First, turning to Burns' Ind.Stat., Sec. 9-101, 1956 Replacement, we find that felonies and misdemeanors are divided and defined as follows:
'All crimes and public offenses which may be punished with death or imprisonment in the state prison shall be denominated felonies; all [and] all other offenses against the criminal law shall be denominated misdemeanors.' (Our emphasis.)
In regard to felonies, the term 'may' is important. In Lee v. State (1959), 239 Ind. 232, 156 N.E.2d 78, this court, in construing a sentencing statute, defined 'may' as giving the Judge discretionary power in deciding whether to sentence in a certain matter. Applying such an interpretation of 'may' to the statute defining felonies and misdemeanors, it becomes obvious that the Legislature intended by this statute that all offenses or crimes which may be punishable by imprisonment are to be deemed felonies.
The fact that the vehicle taking statute, Burns' Ind.Stat., Sec. 10-3011, 1956 Replacement, supra, provides that the court or the jury may, as an alternative, impose a sentence of imprisonment to the county jail or to the Indiana State Farm, does not change the character of the offense. Hicks v. State (1898), 150 Ind. 293, 50 N.E. 27; Ewbank's Indiana Criminal...
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Baker v. State
...state has correctly characterized this offense as a felony. See, Young v. State, (1970) 254 Ind. 379, 260 N.E.2d 572; Paneitz v. State, (1965) 246 Ind. 418, 204 N.E.2d 350. Furthermore, there was no error in introducing evidence of this third prior conviction during the habitual offender pr......
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Barnes v. State
...v. State, (1978) 268 Ind. 667, 377 N.E.2d 1365. See also Hollars v. State, (1972) 259 Ind. 229, 286 N.E.2d 166; Paneitz v. State, (1965) 246 Ind. 418, 204 N.E.2d 350. Further, this Court has held that when a judge specifically mandates that a defendant be imprisoned in a particular facility......
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Rodgers v. State
...PRENTICE and PIVARNIK, JJ., concur. 1 At the time she testified at trial, Welborn was twelve years old.2 He relies on Paneitz v. State, (1965) 246 Ind. 418, 204 N.E.2d 350, for the proposition that for habitual offender purposes, the prior convictions must have resulted in imprisonment in t......