Smith v. State

• Decision Date: 11 February 1919
• Docket Number: No. 23457,23457
• Parties: SMITH v. STATE.
• Court: Indiana Supreme Court

188 Ind. 64

121 N.E. 829

SMITH

v.STATE.

No. 23457

Supreme Court of Indiana.

Feb. 11, 1919.

Appeal from Circuit Court, Delaware County; W. A. Thompson, Judge.

Romeo Smith pleaded guilty to an indictment charging the crime of keeping a gaming house and moved to vacate the judgment entered, and on denial moved to modify the judgment, which was also overruled, and he appeals. Reversed, with instructions to sustain the motion to vacate the judgment.

George W. Cromer and Harry Long, both of Muncie, for appellant.

Ele Stansbury and Edward M. White, both of Indianapolis, for the State.

MYERS, J.

On January 10, 1918, appellant was sentenced to pay a fine of $250, and to imprisonment on the Indiana state farm for a period of six months. On January 28, 1918, appellant filed his verified motion to set aside and vacate said judgment, which motion was overruled February 1, 1918; thereupon he filed his verified motion to modify the judgment. This motion was overruled. From the judgment thus rendered appellant has appealed to this court, and has assigned as error: (1) The overruling of his motion to set aside and vacate the judgment; (2) the overruling of his motion to modify the judgment.

Counter affidavits were filed by Hon. William A. Thompson and the deputy sheriff of Delaware county denying certain statements of fact contained in appellant's motion to vacate the judgment. The facts thus questioned we will not undertake to settle. With these facts out of the way, this case is before us under practically an agreed statement as follows: Two indictments were returned by the grand jury at the January term, 1917, of the Delaware circuit court, one on January 6th and one on January 16th, hereafter referred to as the first and second respectively. On March 19, 1917, appellant appeared in the Delaware circuit court, and before Hon. William A. Thompson, sole judge thereof, and entered a plea of guilty to each of said indictments. He was then permitted to go hence on bond for his appearance in that court on May 22, 1917. He appeared in court as stipulated in the bond, and before the judge thereof, who then and there, on appellant's plea of guilty theretofore entered to the first indictment, judgment was pronounced and sentence fixed at a fine of $250, and imprisonment on the Indiana state farm for a period of three months. Appellant paid the fine and costs assessed against him, and was imprisoned in accordance with the sentence imposed. The term of his imprisonment expired on August 22, 1917, at which time he was released, and then and there returned to his home in Muncie, Ind., where he has continuously resided, and within the jurisdiction of the Delaware circuit court.

No action whatever was taken by the court on appellant's plea of guilty to the second indictment prior to January 10, 1918, at which time, on order of the court, the sheriff of Delaware county brought appellant into court, and judgment was then and there rendered against him on his plea of guilty entered more than nine months prior thereto, and more than seven months after the time of his sentence on the first indictment. Appellant was 48 years old at the time he pleaded guilty, and from the time of his release from the state farm he was not in the custody of the court or sureties until said January 10th. There is no claim of any attempt on the part of the court to follow the provisions of sections 2174, 2176, Burns 1914 (Acts 1907, p. 447, §§ 1, 3), known as the parol or suspending sentence statute.

[1][2] Appellant insists that under this state of the record, the Delaware circuit court has no authority or jurisdiction to pronounce judgment or sentence him on January 10, 1918. Section 2166, Burns 1914 (Acts 1905, p. 584, § 290, of our Criminal Code) provides that:

“After a finding or verdict of guilty, against the defendant, if a new trial be not granted, or the judgment be not arrested, the court must pronounce judgment.”

And section 2171, Burns, provides that:

“If no sufficient cause be alleged or appear to the court why judgment should not be pronounced, it shall thereupon be rendered.”

Under section 2073:

“If the accused plead guilty, said plea shall be entered on the minutes, and he shall be sentenced, or he may be placed in the custody of the sheriff until sentenced.”

The remainder of this section has reference to an accused under the age of 21 years, and can have no bearing on the question here for decision.

The state has called our attention to the case of Gray v. State, 107 Ind. 177, 8 N. E. 16. That case holds that any agreement to compound, discontinue, or delay a prosecution is forbidden by the statute, and is illegal and void. It also reaffirmed the doctrine announced in the case of Smith v. Hess, 91 Ind. 424, to the effect that the trial court, under the provisions of section 2073, supra, had no power to permit the accused to depart from court without sentence, subject to arrest in case he did not behave well. The ruling thus made is in harmony with the holding of this court in Shaffer v. State, 100 Ind. 365. In this last case there was an order book entry showing that the sentence was suspended. A motion to discharge the accused on the ground that the order suspending sentence amounted to a judgment which was not subject to change or amendment was overruled, and the defendant sentenced. This action of the court was upheld for the reason it did not appear from the record that the judgment was unnecessarily delayed.

In the Smith Case, this court said:

“The legitimate inference from the statute is that the Legislature, in its enactment, did not intend that the courts should allow adult offenders to go on good behavior. Without deciding what might be the result of such a practice, upon a proper case made, and properly brought before us, we may say that, as at present advised, we do not feel like giving our sanction to that practice.”

The case of Ledgerwood v. State, 134 Ind. 81, 33 N. E. 631, is cited by the state in support of its contention that the trial court did not lose jurisdiction to punish appellant on his plea of guilty. That case holds that the court's failure to render judgment, after a plea of guilty, until the next term, will not divest its jurisdiction. By reference to the record in that case, it will be observed that the defendant was at all times after his arrest in the custody of the court. The reason for the postponement does not appear in the opinion, but the record shows just cause. This fact would be sufficient to distinguish it from the case at bar, for in this case no cause is shown for the delay of two full terms between the term at which the plea of guilty was entered and the term at which the sentence now under consideration was pronounced.

There is no reason or authority for saying that an accused must not only do what the law requires of him, but that he must go farther and compel the court to perform a plain statutory duty, if he would protect himself from the motives of the court's failure to act. As said in the...