Pivak v. State

Decision Date04 March 1931
Docket NumberNo. 13795.,13795.
Citation202 Ind. 417,175 N.E. 278
PartiesPIVAK v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Criminal Court, Lake County; Maurice E. Crites, Special Judge.

Tony Pivak was convicted for a misdemeanor and also for a felony, and, from the judgment for the misdemeanor, he appealed to the Supreme Court, which subsequently transferred the case to the Apellate Court, where the judgment was affirmed, and defendant petitioned the Supreme Court to set aside the order of transfer and to recertify the case to the Supreme Court.

Petition dismissed.

Patterson & Thiel, of Gary, for appellant.

The Attorney General, for the State.

MARTIN, J.

This appeal was from a judgment imposing a fine and a short term imprisonment in the Indiana State Farm for a misdemeanor. It was pending in this court on March 12, 1929, the date on which section 1, c. 123, Acts 1929, § 2377.1 Burns' 1929 Ann. St. Supp., became effective, and, being within the class of cases covered by that law, was thereupon transferred to the Appellate Court, where it was decided; the judgment being affirmed. Pivak v. State (1929, Ind. App.) 168 N. E. 717. In a petition to set aside the order transferring this case to the Appellate Court and to recertify it to the Supreme Court, petitioner (the appellant) contends that a constitutional question was involved in his appeal and that the Appellate Court did not have jurisdiction to decide the same.

[1][2] The act of 1929, cited above, conferred jurisdiction upon the Appellate Court in certain criminal cases, but it did not in any manner repeal, amend, or modify section 1, c. 201, Acts 1925, § 1356, Burns' Ann. St. 1926, which provided that the jurisdiction of an appeal is in the Supreme Court if in such appeal “there is in question, and such question is duly presented, *** the constitutionality of a statute, state or federal, or the rights guaranteed by the state or Federal Constitution.” The jurisdiction of an appeal involving a constitutional question is in the Supreme Court, even though it is of a class of appeals that, under chapter 123, Acts 1929, would go to the Appellate Court if such constitutional question was not involved In re Petition to Transfer (1931, Ind. Sup.) 174 N. E. 812, decided Jan. 29, 1931. But, in order for the Supreme Court to have jurisdiction of such a case, the constitutional question must actually be involved and be properly presented. It is not sufficient that it merely be alleged to be involved. If an allegation only was sufficient, it would be possible to appeal every case directly to the Supreme Court or to obtain the transfer thereto of any case pending in the Appellate Court.

The constitutional question which petitioner contends is involved in and presented by his appeal is as follows: That he was found guilty of possessing intoxicating liquor and also of feloniously transporting the same intoxicating liquor in an automobile (on the transportation charge appellant was convicted and sentenced to serve not less than one nor more than two years in the Indiana State Prison, but such sentence was suspended during good behavior and from such conviction he did not appeal), that, when the same act constitutes a misdemeanor and a felony, the offenses are merged, and that judgments under findings of guilty on both charges (the prosecutions were by separate affidavits but by agreement of the parties they were tried together) violate section 14, art. 1, Const., that “no person shall be put in jeopardy twice for the same offense.” But upon an examination of the record it clearly appears (A) that such question is not properly presented by the appeal; and (B) that no constitutional question is actually involved in the case.

[3][4] (A) The appellant made no objection to the judgment in the trial court on the ground urged by him on appeal. It is the general rule, subject to few exceptions, that questions not raised in the trial court will not be considered on appeal, Hornberger v. State (1854) 5 Ind. 300; and appellant's failure to raise such objection to the judgment in the trial court renders it unavailable on appeal. Skaggs v. State (1886) 108 Ind. 53, 8 N. E. 695;Heyverests v. State (Ind. Sup.) 174 N. E. 710, decided Feb. 10, 1931.

[5][6][7] (B) Appellant is incorrect in his contention that the two offenses charged are the “same acts” and constitute the “same offense.” The acts and offenses charged in the two prosecutions are separate and distinct, although they may have occurred at the same time. Such a prosecution does not violate the rule announced in Jackson v. State (1860) 14 Ind. 327, that the state cannot split up one crime and prosecute it in parts,” and the consolidation of prosecutions for different offenses under separate affidavits for the purpose of trial does not make them one offense so as to permit but one verdict and sentence. Campbell v. State (1926) 198 Ind. 231, 153 N. E. 397.

[8] A single act may constitute two or more distinct and separate offenses, as: The sale of intoxicating liquor without a license to a minor, State v. Gapen (1896) 17 Ind. App. 524, 45 N. E. 678, 47 N. E. 25; and the unlawful sale of intoxicating liquor by a person without a license and keeping and operating a place where such liquors are sold in violation of law, Woodworth v. State (1916) 185 Ind. 582, 114 N. E. 86. In Albrecht v. U. S. (1926) 273 U. S. 1, 47 S. Ct. 250, 254, 71 L. Ed. 505, where a defendant by separate counts of the same information was charged with the offenses of possessing and selling intoxicating liquor, it was said: “The fact that the person sells the liquor which he possessed does not render the possession and sale necessarily a single offense.” In Thompson v. State (1929) 89 Ind. App. 555, 167 N. E. 345, it was held that, in a prosecution for unlawful possession of intoxicating liquor and for maintaining a liquor nuisance, conviction on both charges did not result in double punishment, as the two offenses are separate and distinct notwithstanding the fact that the offense of maintaining the nuisance was based on the unlawful possession of the intoxicating liquor. In Alyea v. State (1926) 198 Ind. 364, 152 N. E. 801, 153 N. E. 775, it was held that a prosecution for maintaining a public nuisance would not constitute a bar to a subsequent prosecution for the sale of intoxicating liquor at the same time and place. See, also, Thomas v. City of Indianapolis (1924) 195 Ind. 440, 145 N. E. 550, 35 A. L. R. 1194;Woodward v. State (1926) 198 Ind. 70, 152 N. E. 277;Foran v. State (1924) 195 Ind. 55, 144 N.E. 529;State v. Reed (1907) 168 Ind. 588, 81 N. E. 571.

[9][10] The consolidation of the two prosecutions here for the purpose of trial did not result in a merger of the misdemeanor of possessing intoxicating liquor. There is much obscurity in the books as to the application of the doctrine of merger, but offenses to be merged must in fact be the same. 1 Bishop Cr. Law (9th Ed.) §§ 788.2, 787.4. The doctrine applies only where the identical criminal act constitutes both offenses.1 16 C. J. 59; 1 Bishop Cr. Law (9th Ed.) 560.

Moreover it is doubtful if the doctrine of nerger of offenses ever existed in this state. In Hamilton v. State (1871) 36 Ind. 280, 287, 10 Am. Rep. 22, the court said “without expressing any opinion on the question, whether the doctrine of merger, as it relates to criminal offenses, would be recognized in this State, we may say that the later determinations of the courts of England seem not to favor the doctrine, and in many of the states of the union it is held not to be the law.” We find several cases in the Indiana reports in which the doctrine is referred to, some of them holding that it did not apply because the offenses were of the same grade, but we find no Indiana case in which that doctrine has actually been applied, except possibly as noted below.2

There being in this case no merger of offenses and no double conviction for the same offense, there can be no basis for appellant's claim that he has been twice placed in jeopardy for the same offense, and it follows that no constitutional question is involved.

The petition is dismissed.

MYERS, C. J., and TRAVIS, J., absent.

1 The doctrine of merger rests on the principle that the offense merged is lesser than the one in which it is merged, and that the ingredients of the smaller one are so identical with the ingredients of the larger one that both have been committed, they cannot in reason and justice be separated, so that to punish an accused in such a case would be in effect to punish the same act twice. State v. Setter (1889) 57 Conn....

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5 cases
  • Richardson v. State
    • United States
    • Indiana Supreme Court
    • October 1, 1999
    ...929 (citing Peterson v. State, 674 N.E.2d 528, 533-34 (Ind. 1996); Moran v. State, 644 N.E.2d 536, 540 (Ind.1994)). 25. Pivak v. State, 202 Ind. 417, 175 N.E. 278 (1931); Lawson v. State, 202 Ind. 583, 177 N.E. 266 (1931); Kokenes v. State, 213 Ind. 476, 13 N.E.2d 524 (1938); Carter v. Stat......
  • Strode v. State
    • United States
    • Indiana Appellate Court
    • February 7, 1980
    ...Motion to Correct Errors. Nor may it be raised for the first time on appeal. Ind.Rules of Procedure, Trial Rule 59(G); Pivak v. State, (1931) 202 Ind. 417, 175 N.E. 278. The record of the motion to dismiss hearing discloses that the parties were in agreement over the extent to which both pr......
  • Baker v. State
    • United States
    • Indiana Appellate Court
    • October 8, 1985
    ... ... Although this alleged error might infringe upon Baker's constitutional right against double jeopardy, such infringement does not constitute fundamental error and may be waived. Jeffers v. U.S. (1977), 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168; Pivak v. State (1931), 202 ... Ind. 417, 175 N.E. 278; Strode v. State (1980), Ind., 400 N.E.2d 183, 186 ... III. Sufficiency ...         Baker's final issue challenges the sufficiency of the evidence presented at trial. When we review a conviction for sufficiency of the evidence, we neither ... ...
  • | Pivak v. State
    • United States
    • Indiana Supreme Court
    • March 4, 1931
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