160 Ind. 678 | Ind. | 1903
Appellant was charged in three counts— for assault and battery with intent to murder, with assault and battery with intent to commit robbery, and for robbery. Trial by jury, and the following verdict returned: “We, the jury, find the defendant guilty of assault and battery with intent to rob, as charged in the second count of the affidavit and information, E. Steffy, foreman.”
Appellant unsuccessfully moved for a venire <de novo on the ground of uncertainty and insufficiency of the verdict, and for a new trial. The judgment was that appellant be confined in the Indiana state prison not less than two nor more than fourteen years, and pay a fine of .$1.
We can not accept appellant’s construction of the statute as the true one. In cases of felony it is the duty of the court or jury trying the case to find whether the defendant is over sixteen or less than thirty years of age. §1906b Burns 1901. But the statute does not require the State to make the proof. It is proper for either side-to make it, but not required of either side, or essential to the trial that it be made at all. The finding does not affect the guilt or innocence of the defendant, nor the extent of his punishment, nor is it responsive to any necessary averment of the indictment. The sole object is to inform the court whether the defendant is entitled to serve his punishment in the reformatory or state prison. In so far as the former of these prisons may be preferred to the latter, it is a benefit belonging to the defendant, easily available to him if he chooses to make it so. If he is indifferent, and permits the trial to close when the State has neglected or been unable to make the proof, without signifying his acceptance of the benefit by making the proof himself, he will- not be heard to complain after judgment that the court has sentenced him to the wrong prison. Colip v. State, 153 Ind. 584, 74 Am. St. 322. We see no reason, however, why such proof may not be made even after verdict if the court, in its discretion, deems proper to allow it.
We find no error. Judgment affirmed.