Parker v. State

• Decision Date: 09 November 1893
• Parties: PARKER et al. v. STATE.
• Court: Indiana Supreme Court

135 Ind. 534

35 N.E. 179

PARKER et al.

v.STATE.

Supreme Court of Indiana.

Nov. 9, 1893.

Appeal from criminal court, Marion county.

Motion by the state to set aside a stay of the execution of a sentence of death pronounced against John Parker and Edward McAfee, which stay was granted by the supreme court pending an appeal. Motion denied.

Kealing & Hugg and R. W. McBride, for appellants. A. G. Smith, for the State.

COFFEY, J.

The appellants in this case were indicted, tried, and convicted in the Marion criminal court upon a charge of murder in the first degree, and were sentenced to suffer death on the 3d day of November, 1893. From this judgment they appealed to this court, and on the 28th day of September applied for a stay of execution, upon the ground that the time intervening between the date of filing the transcript in this court and the date fixed for the execution was not sufficient to enable their counsel to properly examine and argue the legal questions in the case, and was not sufficient to enable the court to properly consider and decide the legal questions arising upon the assignment of errors in the cause. After due consideration of the petition and the record in the case, the court found that it was impossible to properly consider and decide the errors assigned upon the record prior to the 3d day of November, 1893, and thereupon entered an order staying the execution of the sentence passed upon the appellants until the 5th day of January, 1894. The attorney general of the state files a petition to vacate that order, upon the alleged ground that it is in violation of article 3, § 1, and article 5, § 17, of the constitution of the state, and that this court, in staying the execution of the sentence of the appellants, attempted to and did exercise the constitutional powers and duty of the governor of the state; that the power to grant reprieves and stay of execution, in criminal cases, is vested in the governor, and not in the courts.

Section 1888, Rev. St. 1881. provides that: “An appeal to the supreme court from a judgmentof conviction does not stay the execution of sentence, except where the punishment is to be death or the judgment is for a fine or a fine and costs only, in which cases the execution of sentence may be stayed by order of the supreme court, or a judge thereof.” Section 1874 provides that: “When the execution of the sentence is respited to another day by the governor, or where the same is suspended by order of the supreme court pending an appeal thereto, the sheriff must note the same on the warrant, and the defendant must be detained in custody until the day to which the respite is granted, or the execution suspended by the supreme court, at which time the sheriff, unless the judgment is reversed, or the defendant pardoned, must execute the sentence between the hours specified in the judgment and return the warrant, with the respite or order of the supreme court.” It is not denied that this court had the power, under these statutes, to make the order in question, provided they are valid enactments; but it is said that they are in conflict with the sections of the constitution above referred to, and for this reason they are void. Section 1, art. 3, of the constitution provides that: “The powers of the government are divided into three separate departments, the legislative, the executive, including the administrative, and the judicial, and no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in this constitution expressly provided.” Under this provision of our state constitution, it has often been held by this court that the three departments of the state government are not merely equal, but they are exclusive, in respect to the duties assigned to each. They are absolutely independent of each other. They are equal, co-ordinate, and independent. This division of power was intended to prevent the concentration of power in one person, or class of persons. Railroad Co. v. Geiger, 34 Ind. 185;State v. Denny, 118 Ind. 382, 21 N. E. Rep. 252; City of Evansville v. State, 118 Ind. 426, 21 N. E. Rep. 267; State v. Denny, 118 Ind. 449, 21 N. E. Rep. 274; State v. Noble, 118 Ind. 350, 21 N. E. Rep. 244; Hovey v. State, 127 Ind. 588, 27 N. E. Rep. 175. Because these several departments of the government are separate and independent, and because the incumbent of each is prohibited from performing any of the functions belonging to another department, it has been held that a legislature cannot pass a valid act relieving persons from penalties incurred by violation of penal statutes, nor can it pass a valid act compelling the refunding of money collected on a judgment; in short, that it is not in the power of one department of the government to perform any of the functions belonging to another. State v. Sloss, 25 Mo. 291;Haley v. Clark, 26 Ala. 439. Section 17, art. 5, of the constitution, provides that the governor of the state shall have power to grant reprieves, commutations, and pardons, after conviction, for all offenses except treason and cases of impeachment, subject to such regulations as may be provided by law; so that if the granting of a stay of execution by the supreme court, in a capital case pending before it on appeal, is the granting of a reprieve, within the meaning of this provision of the constitution, it must follow that the statutes above set out are void, as being in conflict with the constitution of the state.

In solving the question as to whether the granting of a stay of execution by this court, in a capital case pending before it on appeal, is a reprieve, within the meaning of that word, as it appears in the constitution, we must keep in mind the fact that the same constitution creates the...