Saraceno v. State , 25965.

• Decision Date: 26 August 1931
• Docket Number: No. 25965.,25965.
• Citation: 202 Ind. 663,177 N.E. 436
• Parties: SARACENO v. STATE.
• Court: Indiana Supreme Court

202 Ind. 663

177 N.E. 436

SARACENO

v.STATE.

No. 25965.

Supreme Court of Indiana.

Aug. 26, 1931.

Appeal from Whitley Circuit Court; Fred L. Bodenhafer, Special Judge.

Joseph Saraceno, alias Joe Taylor, was convicted of bank robbery, and he appeals.

Affirmed.

William H. Kissinger and John M. Kissinger, both of Columbia City, for appellant.

The Attorney General and Robert L. Bailey, of Indianapolis, for the State.

MARTIN, C. J.

The appellant, Joseph Saraceno, alias Joe Taylor, was charged by an indictment in seven counts with the crime of bank robbery under section 1, c. 158, Acts 1927, p. 470, section 2425.1, Burns' 1929 Supp. The evidence is not in the record, but we are informed by the appellant's brief that the case grew out of a daylight holdup of a bank in Columbia City on April 18, 1929, staged by men who drove up in an automobile, three of them entering and robbing the bank of $3,000 while one (alleged to be appellant) remained with the automobile, and, upon the ringing of the bank's burglar alarm, engaged in a shooting duel with police officers with repeating guns, during which a woman was killed. Appellant was tried by a jury which returned a verdict of guilty (stating that he was thirty-three years old) and he was sentenced to ten years' imprisonment in the Indiana State Prison.

Errors assigned and not waived present for consideration the action of the court in overruling appellant's motions to quash the indictmentand for a new trial, reasons assigned in the latter motion being the giving and refusal to give certain instructions and the sustaining of objections to questions propounded to jurors on their voir dire examination.

Appellant contends that his motion to quash was improperly overruled, for the reason that the facts stated in the indictment do not constitute a public offense, the alleged basis for this contention being that statute under which the indictment is drawn is invalid because it is a “local or special law *** for the punishment of crime,” forbidden by section 22, art. 4, Constitution. Appellant's contention seems to be that, because the Indeterminate Sentence Law provides for maximum and minimum limits of imprisonment to be stated in the judgment, an act which provides for the imposition of a definite and certain term of imprisonment is local and special.

Section 8 of the Reformatory Act, chapter 53, Acts 1897, and section 1 of the Parole Commission Act, chapter 143, Acts 1897 (re-enacted in the Criminal Code of 1905, sections 275, 276, c. 169, Acts 1905, and by chapter 200, Acts 1927, now being sections 2316, 2317, Burns' 1929 Supp.) constitute what is known as the Indiana Indeterminate Sentence Law.¹ Section 2317, supra, provides, whenever any male person thirty years of age or over is found guilty of any felony (other than treason or murder), that, “instead of pronouncing against such defendant a definite term of imprisonment, the court, after such finding or verdict of guilty, shall pronounce against him a sentence of imprisonment in the state prison for an indeterminate period, stating in such sentence the maximum and minimum limits thereof, as such maximum and minimum limits of time for the punishment of such offense are now or may hereafter be prescribed by law. ***” (Our italics.)

[1][2] It can readily be seen from the italicized portion above that it applies only to that class of felonies for which the law prescribes maximum and minimum limits of penalties. The statute under which appellant was convicted provides, in part, that a defendant “upon conviction, shall be imprisoned for life or for any determinate term of years not less than ten years,” and that, “the indeterminate sentence law of the state of Indiana shall not apply to sentences for the crime herein defined.”

[3][4] The Indeterminate Sentence Law does not apply generally and inclusively to all crimes nor to all criminals. But even if it did at the time of its enactment apply to all crimes then defined and to all persons committing such crimes, the enactment of a new law defining a new crime and providing a determinate sentence therefor would not by reason thereof be a “local and special law *** for the punishment of crime.” A law is not local and special if it applies to all who come within its provisions generally and without exception, rests upon an inherent and substantial basis of classification, and its operation is the same in all parts of the state under the same circumstances and conditions. We need not, in the decision of this case, enter into a detailed discussion of what constitutes a local and special law for the punishment of crime which is prohibited by section 22, art. 4, Ind. Const., section 125, Burns' 1926, but examples of such laws are discussed in Armstrong v. State (1908) 170 Ind. 188, 84 N. E. 3, 15 L. R. A. (N. S.) 646, and State v. Wiggam (1918) 187 Ind. 159, 118 N. E. 684, and examples of laws which were held not to be local and special laws for the punishment of crime are discussed in Hammer v. State (1909) 173 Ind. 199, 89 N. E. 850, 24 L. R. A. (N. S.) 795, 140 Am. St. Rep. 248, 21 Ann. Cas. 1034;Long v. State (1910) 175 Ind. 17, 92 N. E. 653; and Koplovitz v. Jensen (1926) 197 Ind. 475, 151 N. E. 390.

[5] Instruction No. 3 given by the court was a lengthy instruction upon the burden of proof, the presumption of innocence, and reasonable doubt. In the course of the instruction the court stated that “this presumption of innocence attends him (the defendant) step by step at all stages of the trial until his guilt is established, if at all, to that degree of certainty” (i. e., beyond a reasonable doubt). The...