Skelton v. The State

• Decision Date: 08 March 1898
• Docket Number: 18,381
• Citation: 49 N.E. 901,149 Ind. 641
• Parties: Skelton v. The State
• Court: Indiana Supreme Court

49 N.E. 901

149 Ind. 641

Skelton v. The State

No. 18,381

Supreme Court of Indiana

March 8, 1898

From the Montgomery Circuit Court.

Affirmed.

G. W Paul, H. D. Van Cleave and W. B. Paul, for appellant.

W. A Ketcham, Attorney-General, Dumont Kennedy and Merrill Moores for State.

OPINION

Howard, C. J.

On affidavit and information by the prosecuting attorney, the appellant was found guilty of petit larceny, and sentenced to the Indiana Reformatory. The property alleged to have been stolen consisted of "forty-six turkeys, then and there the personal property of Delila Todd;" and it is assigned and argued as error that the court overruled a motion in arrest of judgment, for the reason that the affidavit and information fail to state that the turkeys were domestic, and in the possession of Delila Todd or some other person. The argument is that the turkeys might be wild ones, and therefore not the property of any person, and hence not subject to larceny. It is alleged, however, that they were "the personal property of Delila Todd;" and this sufficiently shows her ownership. Turner v. State, 102 Ind. 425, 1 N.E. 869. Their value is also alleged. If the turkeys were owned by Delila Todd, and were of a given value, they could not, at the same time, be mere game birds, untamed rangers of the forest and the prairie.

It is said, further, in support of the motion in arrest of judgment, that the court had no jurisdiction to try the case, for the reason that the regular judge, on motion by the State for a change of venue from the judge, sustained the motion, and appointed in his own stead the special judge who presided below. It may be, as counsel argue, that the statute does not give the State the right in a criminal cause to move for a change of venue from the judge. This, however, would not deprive the regular judge of the power to appoint an attorney in good standing to try one or more causes, or to hold court in his stead. Several sections of the statute make provisions for the appointment of special judges. Sections 1429, 1444, 1446, 1447, Burns' R. S. 1894 (1371a, 1381, 1383, 1383a, Horner's R. S. 1897). More than this, however, the appellant went to trial, and submitted himself without objection to the jurisdiction of one who had at least colorable authority to preside as judge. Appellant could not thus play fast and loose with the court,--assume that it had jurisdiction to acquit him, but no jurisdiction to convict him. By not objecting at the time of the trial, he waived all right to question the jurisdiction of the judge appointed by the regular judge to preside at that trial. State v. Murdock, 86 Ind. 124; Smurr v. State, 105 Ind. 125, 4 N.E. 445; Schlungger v. State, 113 Ind. 295, 15 N.E. 269; Greenwood v. State, 116 Ind. 485, 19 N.E. 333. In Smurr v. State, supra, it was said that "where a party goes to trial without objection before a judge assuming to act under color of authority, he cannot, after judgment or conviction, successfully make the objection that the judge had no authority to try the cause."

One of the reasons given why the motion for a new trial should have been awarded is that "The verdict of the jury is contrary to law." The reason so given is based on the fact that the jury did not state in their verdict, as required by section 1906, Burns' R. S. 1894 (1837, R. S. 1881), "the amount of fine and the punishment to be inflicted." It is true that the statute cited does require that the fine and punishment should be stated in the verdict when the trial is by a jury.

But by section eight of an act approved February 26, 1897 (Acts 1897, p. 69), in force at the time of the trial of this cause, it is provided that: "In all cases of felony tried hereafter before any court or jury in this State, if the court or jury find the person on trial guilty of a felony, it shall be the duty of such court or jury to further find and state whether or not the defendant is over sixteen (16) years of age and less than thirty (30) years of age. If such defendant be found to be between said ages, and he be not guilty of treason or murder in the first or second degree, it shall only be stated in finding of the court or verdict of the jury, that the defendant is guilty of the crime charged, naming it, and that his age is that found by it or them to be his true age."

As petit larceny may be punished by imprisonment in the state prison it is, under our statutes, a felony. Section 1642, Burns' R. S. 1894 (1573, R. S. 1881). It therefore follows that, under the provisions above cited from the act of 1897, if valid, the verdict was sufficient; for it was therein stated that the appellant was guilty of petit larceny, and that his age was twenty-two years. Counsel, however, contend that the provisions cited, as to the form of verdict to be returned by the jury, cannot be valid, for the reason that they invade the constitutional right of trial by jury. The constitution provides that: "In all criminal prosecutions the accused shall have the right to a public trial by an impartial jury in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face; and to have compulsory process for obtaining witnesses in his favor." Const., Art. 1, section 13.

We are unable to see that any of these beneficent provisions of the bill of rights is violated by not requiring the jury to fix the punishment. Our statute, it is true, as we have seen, has heretofore provided that the jury shall in their verdict name the punishment to be inflicted. But the constitution makes no such requirement; and that which the statute has done the statute may undo, provided it remain within the bounds fixed by the constitution. The last act of the legislature controls in case of conflict. Indeed, aside from any statutory requirement, the fixing of punishment cannot be considered as any necessary part of the trial of a cause. When the verdict or finding has determined the existence of the crime charged, the trial is ended, and the punishment to be thereafter inflicted is the sentence which the court pronounces under the law then in force. The fixing of such punishment seems to be a proper function of a court, rather than of a jury, a matter of judgment, rather than of finding or verdict. Certainly, the leaving of this duty to the court instead of to the jury, as the act in question does, is no invasion of the sacred right of trial by jury. Article six of the...