The State v. Arnold
| Decision Date | 22 February 1896 |
| Docket Number | 17,631 |
| Citation | 42 N.E. 1095,144 Ind. 651 |
| Parties | The State v. Arnold |
| Court | Indiana Supreme Court |
Reported at: 144 Ind. 651 at 660.
From the Whitley Circuit Court.
The judgment is reversed, with instructions to render judgment upon the verdict as to the element of imprisonment.
W. A Ketcham, Attorney-General W. A. Glatte, Prosecuting Attorney I. W. Leonard, T. R. Marshall, W. F. McNagney and T. H Clugston, for State.
H. S. Biggs, L. W. Royse and A. A. Adams, for appellee.
The appellee was charged in the lower court, by indictment in two counts, under section 2260, R. S. 1894 (section 2139, R. S. 1881), with the crime of conspiring with other persons named to obtain money by false pretense. At the trial, the court charged the jury that if the defendant should be found guilty as charged in the second count of the indictment the punishment prescribed was imprisonment in State's prison not more than seven years nor less than one year, and a fine in a sum not exceeding $ 1,000.00 nor less than $ 10.00. The verdict of the jury found the appellee guilty as charged in the second count and affixed his punishment at imprisonment in the State's prison for the term of one year and a fine in the sum of $ 25.00. The verdict further found the appellee not guilty as charged in the first count.
It is conceded by appellee's counsel that the punishment prescribed for the offense charged in the second count of the indictment was by a fine not to exceed $ 5,000.00 nor less than $ 25.00 and imprisonment in the State's prison for a term not exceeding fourteen years nor less than two years. Over the objection and exception of the appellant the court rendered judgment against the appellee for $ 25.00 and the costs of the prosecution, and sustained the appellee's written objection to judgment upon that part of the verdict affixing imprisonment as a part of the punishment. A motion by the appellee for a new trial was withdrawn over the appellant's objection; a motion by the appellant to subject the appellee to another trial was denied, and other steps were taken, none of which do we regard as necessary to a decision of the case. The bill of exceptions presents the case upon reserved questions, and discloses that when the verdict was returned there was no objection or exception made to it by the appellee or his counsel.
The first inquiry arising in the case is upon the appellee's motion to dismiss the appeal for the alleged reason that an appeal was not authorized by the statute, there having been no acquittal of the appellee, and because of the payment of the judgment rendered on the verdict. Section 1915, R. S. 1894 (section 1846, R. S. 1881), is as follows:
Section 1955, R. S. 1894 (section 1882, R. S. 1881), is as follows: "Appeals to the Supreme Court may be taken by the State in the following cases, and no other:
Section 1956, R. S. 1894 (section 1883, R. S. 1881), is as follows:
These statutes, it is urged, deny the right of the State to appeal in other instances than those enumerated, and this we have no doubt is correct, as shown by the cases cited to that proposition. State v. Bartlett, 9 Ind. 569; State v. Hamilton, 62 Ind. 409; State v. Hallowell, 91 Ind. 376; State v. Evansville, etc., R. R. Co., 107 Ind. 581, 8 N.E. 619. Such instances, briefly stated, are: "upon reserved question, in case of acquittal;" "upon judgment for the defendant, on quashing or setting aside an information or indictment;" and "upon an order of the court arresting the judgment." The verdict in the present case was one of conviction and not of acquittal. The error in the verdict was in assessing a punishment less than that prescribed by the statute. Regarding this error, for the purposes of the present question, as against the appellee rather than in his favor, how was he privileged to take advantage of the error? But three ways, under our practice, were open to him: 1st, a motion for a new trial; 2d, a motion for a venire de novo; and 3d, a motion in arrest of judgment. Any one of these permitted an adjudication of his rights without a complete miscarriage of justice. It is true that each had its objection, from his standpoint, as it made it possible for him to be again put upon trial for the offense charged. He did not avail himself of the first or the second remedy, and, no doubt, avoided the third as far as possible. But to have avoided it entirely was to invent a remedy unknown to the practice and rules of procedure. The remedy employed was to object to the rendition of judgment. Not for the statutory reasons: want of authority in the grand jury or that the indictment stated no public offense (R. S. 1894, section 1912), nor, indeed, for any stated reason. Nevertheless the purpose and effect of the remedy was to arrest the judgment. It is provided by R. S. 1894, section 1919, that "After verdict of guilty, or finding of the court against the defendant, if judgment be not arrested or a new trial granted, the court must pronounce judgment." The appellee waived the right to a new trial by withdrawing his motion therefor, and the only remaining step in denial of the right and duty of the court under the above statute was to arrest the judgment. This step was taken. It will not be an answer to this conclusion to say that the indictment was not bad and that the grand jury had authority to inquire into the offense. If the appellee attained the end wrongfully or without the sanction of the statute, that fact is no answer to the conclusion that the end was accomplished. The arrest of a judgment is simply to stay the rendition of judgment. The phrase as employed regarding appeals has no technical meaning, and the words of the statute (R. S. 1894, section 1955), "upon an order of the court arresting the judgment," do not necessarily imply the arrest of the judgment correctly and for the causes alone that are specified in section 1912, supra. Such an implication would rest upon the false proposition that the defendant could not give a reason for the arrest, except such as is given in the statute, and that the court could not incorrectly sustain such a reason.
It was certainly never contemplated that one convicted of a crime might employ unauthorized methods of procedure by which he could stay the rendition of judgment and at the same time say, "I will not suffer the penalty of the crime, yet since I was not acquitted, the State is remediless." If this proceeding were possible, a verdict of conviction would become an empty ceremony and the rights of the State would be disposed of upon the inventions by counsel of new methods of practice. If a part of the necessary judgment may be defeated by such practice, all of it may be defeated. The ends of justice may not be defeated by novel methods of practice, instituted by one found guilty of crime, and simply by asserting that such methods were unauthorized. The error of the...
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