The State v. Hardman

• Decision Date: 24 November 1896
• Docket Number: 2,282
• Parties: THE STATE v. HARDMAN
• Court: Indiana Appellate Court

45 N.E. 345

16 Ind.App. 357

THE STATE v. HARDMAN

No. 2,282

Court of Appeals of Indiana

November 24, 1896

From the Grant Circuit Court.

Reversed.

W. A Ketcham, Attorney-General, and Elias Bundy, for State.

H. M Elliott, G. M. Elliott, J. T. Strange and E. A. Huffman, for appellee.

OPINION

GAVIN, J.

On June 16, 1895, the following statute was in force in this State: "Whoever makes, composes, dictates, prints, or writes a libel to be published, * * * * and whoever publishes or knowingly aids in publishing or communicating a libel, is guilty of libel, and shall, upon conviction thereof, be fined not more than one thousand dollars nor less than five dollars, to which may be added imprisonment in the county jail for not more than one year nor less than ten days." Section 1998, Burns' R. S. 1894. On July 1, 1895, the Act of 1895 concerning libel went into force. Acts 1895, p. 91; section 1925, Horner's R. S. 1896. Section 3 of this act contains all that is comprised in the first quoted section save that the imprisonment is limited to six months. In addition thereto it contains some additional specifications as to who may be punished for libel, and also prescribes certain rules of evidence to govern upon the trial. In the following section is a clause repealing all laws in conflict therewith without any saving clause.

It has been decided that an amendatory statute which simply defines the same offense in substantially the same language as that used in the statute amended does not take away the right of prosecution under the amended statute, but the new statute is to be regarded as a continuation of the old. Sage v. State, 127 Ind. 15, 26 N.E. 667.

It is claimed, however, by appellee that the latter act without being amendatory of the former, or a reenactment of it, covers the same subject matter and also creates new and distinct offenses, prescribing different penalties therefor and thereby repeals the said section 1998. Wright, Aud., v. Board, etc., 98 Ind. 88; State v. Mason, 108 Ind. 48, 8 N.E. 716; State v. Wells, 112 Ind. 237, 13 N.E. 722.

Assuming this to be the case the question presented for our determination is: Does the repeal of the first named act carry down with it the right to prosecute for violations of its provisions occurring before the repeal? It has been adjudged by our Supreme Court that no one can after its repeal be convicted for the violation of a repealed statute unless the repealing act made provision therefor by a saving clause. Taylor v. State, 7 Blackf. 93; State v. Loyd, 2 Ind. 659; Whitehurst v. State, 43 Ind. 473; State v. Mason, supra.

In 1877 a law was passed providing that "the repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide; and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability." Section 248, Burns' R. S. 1894 (248, Horner's R. S. 1896).

Both the Supreme and this court have already held that this statute preserves liabilities which would otherwise fall by reason of the repeal of the statute upon which they are founded. Daggy, Tr., v. Ball, 7 Ind.App. 64, 34 N.E. 246; Crawford, Tr., v. Hedrick, 9 Ind.App. 356, 36 N.E. 771; Bruce, Treas., v. Cook, 136 Ind. 214, 35 N.E. 992.

The language of section 248 is broad enough to apply to criminal liabilities and the penalties incurred by reason of a disregard of the penal statutes of our State.

It is true that the word "penalty" is frequently used to designate a pecuniary punishment or liability, and has sometimes even been declared to be limited to that class alone and not to include imprisonment. Village of Lancaster v. Richardson, 4 Lans. 136.

We are satisfied, however, that the word is susceptible of, and is frequently used in a broader sense than this, and as a generic term including both pecuniary and personal punishment, and that this is the meaning which should be ascribed to it as used in this statute. Penal laws are defined to be "those laws which prohibit an act and impose a penalty for the commission of it. They are of three kinds: poena pecuniaria, poena corporalis, and poena exilii," Rapalje and Lawrence Law Dict., p. 945. Thus, if we may translate freely, three kinds of penalties are recognized which affect the pocketbook, the person, or the political status of the individual.

The Imperial Dictionary defines "penalty" as "the suffering in person or property which is annexed by law to the commission of a crime, offense or trespass as a punishment." To the same effect are the Encyclopaedic Dictionary, and the Century.

Bouvier says it is "the punishment inflicted by a law for its violation. The term is mostly applied to a pecuniary punishment."

Black says it is "A punishment; a punishment imposed by statute as a consequence of the commission of a certain specified offense."

Counsel for appellee in their brief filed in this cause,...