Sage v. The State

• Decision Date: 28 January 1891
• Docket Number: 15,774
• Citation: 26 N.E. 667,127 Ind. 15
• Parties: Sage v. The State
• Court: Indiana Supreme Court

26 N.E. 667

127 Ind. 15

Sage v. The State

No. 15,774

Supreme Court of Indiana

January 28, 1891

From the Grant Circuit Court.

Judgment affirmed.

W. H Carroll, A. E. Steele and J. A. Kersey, for appellant.

A. G Smith, Attorney General, C. M. Ratliff, Prosecuting Attorney S.W. Cantwell, H. Brownlee, H. J. Paulus and O. A. Baker, for the State.

OPINION

Elliott, J.

The appellant was indicted as an accessory before the fact to the crime of murder in the first degree. The indictment first returned against him was held bad on a former appeal. Sage v. State, 120 Ind. 201, 22 N.E. 338. He was again indicted, tried, and convicted.

A plea in abatement, filed by the accused, presents the question as to the effect of the failure of the court to interrogate a bystander, called as a grand juror, before permitting him to become one of the panel. The statute requires that "before any talesman is accepted and sworn, the court must inquire of him, under oath, as to his qualifications." Section 1651, R. S. 1881. This provision does, unquestionably, impose a duty upon the trial court, and if it could be assumed, as a matter of course, that every error, or every departure from duty, which occurs in selecting grand jurors, entitles an accused to a judgment abating the prosecution, then we should have no difficulty in reaching the conclusion that the trial court did wrong in sustaining the demurrer to the plea; but it is, by no means, every breach of duty regarding the selection of grand jurors that is cause for abatement; on the contrary, a breach of duty, or an error, which does not prejudice the accused, is not sufficient cause for abating the prosecution against him. If, in fact, duly qualified grand jurors are selected, the prosecution will not abate, although there may be some errors, or irregularities, in the mode of their selection. Our conclusion that where qualified jurors are secured, an error, or irregularity, in calling, or empaneling them, does not supply ground for a judgment of abatement, is well fortified by authority. Hardin v. State, 22 Ind. 347; Cooper v. State, 120 Ind. 377, 22 N.E. 320; State v. Mellor, 13 R.I. 666; Commonwealth v. Brown, 147 Mass. 585, 18 N.E. 587.

As there is no pretence that the bystander called into the box was not fully qualified to serve as a grand juror, the question presented by the plea in abatement is fully disposed of by the application of the doctrine we have stated.

The statute defining the offence of which the appellant was convicted, in force at the time the acts which constitute the the crime were done, reads thus: "Every person who shall aid or abet in the commission of any felony; or who shall counsel, encourage, hire, command, or otherwise procure such felony to be committed--shall be deemed an accessory before the fact, and may be tried and convicted in the same manner as if he were a principal, and either before or after the principal offender is convicted, and charged or indicted; and upon such conviction he shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal." In 1889, an act was passed which reads as follows: "Be it enacted that section 1788, R. S. 1881, be amended to read as follows: Every person who shall aid or abet in the commission of a felony, or who shall counsel, encourage, hire or command, or otherwise procure a felony to be committed, may be charged by indictment, or affidavit and information, tried and convicted in the same manner as if he were a principal, either before or after the principal offender is charged, indicted or convicted, and upon such conviction he shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal." Elliott's Supp., section 302. There is, in our judgment, no substantial difference between the two acts, except as to the matter of the remedy, for the elements of the crime are the same under the one statute as under the other. It is true that the later act omits the words "shall be deemed an accessory before the fact," but this omission effects no substantial change in the nature of the offence. It is of little importance that a name or title is altered or omitted where the body of the offence remains the same, and it does in this instance so remain. The omission to give the offence defined a formal name neither adds to the burden of the accused nor diminishes that of the State. No less evidence would be required on the part of the State to warrant a conviction, nor more required on the part of the accused to secure an acquittal under the later statute than was required under the earlier. In no particular whatever, save as to the remedy, does the amendatory statute work any change.

Having ascertained and stated the difference between the two statutes, we are next to inquire and decide whether such a change as that wrought by the amendatory act of 1889 takes away the right of the State to prosecute for a felony committed prior to its enactment. As we have seen, the two statutes are, as regards the offence itself, substantially the same, for precisely the same acts are essential to constitute the crime under both the earlier and the later statutes, so that the situation of the accused is not altered in this respect to his disadvantage, nor is it altered in respect to the punishment, hence it can not be justly asserted that there has been any ex post facto legislation. Holden v. Minnesota, 137 U.S. 483, 34 L.Ed. 734, 11 S.Ct. 143; Medley, Pet., 134 U.S. 160, 33 L.Ed. 835, 10 S.Ct. 384; Calder v. Bull, 3 Dall. 386; United States v. Hall, 2 Wash. C. C. 366, 26 F. Cas. 84. The general rule is that a change in the remedy is not within the inhibition of the Constitution. Robinson v. State, 84 Ind. 452; State v. Manning, 14 Tex. 402; Lasure v. State, 19 Ohio St. 43; Sullivan v. City of Oneida, 61 Ill. 242; Rand v. Commonwealth, 50 Va. 738, 9 Gratt. 738; South v. State, 86 Ala. 617, 6 So. 52; Perry v. State, 87 Ala. 30, 6 So. 425; State v. Cooler, 30 S.C. 105, 8 S.E. 692; State v. Ah Jim, 9 Mont. 167, 23 P. 76.

It is possible that the doctrine asserted by the majority of the court in Kring v. Missouri, 107 U.S. 221, 27 L.Ed. 506, 2 S.Ct. 443, does in some degree impinge upon the general rule asserted by the decided weight of authority, but that decision does not go to the extent of breaking down the general rule so long approved by the courts and the text-writers, for the utmost that can be said of that decision is that it declares that the mode of procedure may sometimes so far and materially affect the rights of an accused as to fall within the sweep of the constitutional provision prohibiting the enactment of ex post facto laws; but giving to that decision the comprehensive effect just ascribed to it, still the act of 1889 is not within its scope, for the reason that the provisions of the act affect the remedy purely, and they neither make it easier for the State to convict nor harder for the accused to secure an acquittal. In short, that act, justly interpreted, simply affects the mode of pleading, and that only to the extent of providing an additional mode of presenting the charge.

A more difficult question is presented by the contention of appellant's counsel that the amendatory act obliterated the act of 1881, and left no law in force defining the crime of which their client was convicted. It is true that in a certain sense and for certain purposes an amendatory act does strike down the act which it amends, for it has often been held that an act which has once been amended can not be again amended, since it is superseded by the amendatory act. Draper v. Falley, 33 Ind. 465; Board, etc., v. Markle, 46 Ind. 96; Longlois v. Longlois, 48 Ind. 60; Blakemore v. Dolan, 50 Ind. 194; Feibleman v. State, 98 Ind. 516; Hall v. Craig, 125 Ind. 523, 25 N.E. 538. These decisions undoubtedly settle the law upon the question to which they are addressed, for they affirm that an attempt to amend a statute which has already been amended is fruitless, but that is not the question here, for the question here is, Does an amendatory statute which re-enacts a former statute so completely destroy it as to prevent a prosecution for an offence committed before the amendatory act became effective?

It is evident from our statement of the question that there is an essential difference between the class of cases represented by the present and the class represented by the decisions to which we have referred. It may well be true that an amended statute is so far superseded that it is incapable of further amendment, and yet not be true that the amendatory act so effectually sweeps away all vestiges of the earlier act that the offence ceased for a time to exist. The affirmation of the one proposition does not necessarily lead to the affirmation of the other, for the one may, with strict logical accuracy, be affirmed and the other denied. If this be true, then it must also be true that the decisions referred to do not require us to affirm that the re-enactment of a statute by an amendatory statute necessarily deprives the State of the right to prosecute one who committed a felony prior to the enactment of the amendatory statute. Giving to those decisions full sanction, and assigning to them due force and effect, we are, nevertheless, at liberty to adjudge that they do not settle the question here presented. That some of the expressions contained in the opinions do seem to sustain the position of appellant's counsel is true, but the authoritative declarations addressed to the questions before the court, and relevant to the point in judgment, have no such effect, hence they can not be regarded as of binding force. As arguments they are entitled to consideration, but only...