152 Ind. 34 | Ind. | 1898
The appellant was tried by a jury in the Clark Ciicuit Court on an indictment charging him with an assault perpetrated April 13, 1896, on one Thomas Glynn, with the felonious intent to murder the said Glynn. The jury found appellant “guilty of the crime charged in the indictment, and that he be fined in the sum of $50, and that his age is fifty-four years.” On this verdict the circuit court rendered judgment that he be confined in the state prison not less than two and not more than fourteen years, and for the fine of $50 and costs, over appellant’s motions for a new trial, for a venire de novo, and in arrest of jridgment. The assignment of errors calls in question these several rulings as the sole grounds on which a reversal of the judgment is sought. Under the motions for a venire de novo and in arrest of judgment, it is contended by appellant that the act approved March 8, 1897, the only law authorizing such a verdict and judgment, known as the indeterminate sentence law, is unconstitutional as to this case, because, as applied to this case, it is an ex post facto law, the alleged crime having been committed before the passage of the act. The constitutionality of the act in all other respects has recently been upheld by this court in Vancleave v. State, 150 Ind. 273; Wilson v. State, 150 Ind. 697; Miller v. State, 149 Ind. 607, 40 L. R. A. 109.
■ Section 24 of article 1 of the bill of rights in the Constitution provides that “No ex post facto law * * * shall be passed.” Section 69 Burns 1894, section 69 Homer 1897. The question is what is an ex post facto law? This court,.as
The contention that the act is ex post facto because it repeals the good time law cannot be sustained. That law relates only to rules for the government of the prison officials. The indeterminate sentence law simply substituted a new and different method of crediting good time to the convict. The good time law does not apply to one sentenced under the indeterminate sentence law or the reformatory act.
Under the motion for a new trial, numerous instructions are complained of, one of which, given by the court on its own motion, is as follows: “12. Even if you believe the prosecuting witness made a rush or attack upon the defendant when he came out of his house, if you believe the prosecuting witness had no weapon in his hands or appearance thereof, then I instruct you that the defendant was not warranted in using a deadly weapon.”
And another, given at the request of the prosecuting attorney, was as follows: “11. An assault or an assault and battery by a person upon another with his hands, arms, or head, or the force or momentum of his body, does not justify the use of a deadly weapon.”
The defendant was a one armed man, his right arm having previously been amputated at the shoulder, and the evidence tended to show that Glynn and others had engaged in a quarrel with defendant in J effersonville, and that Glynn had drawn a beer faucet on defendant as if to strike him; that defendant immediately left them, and went to his residence in said city, and was followed by said Glynn along the
It is insisted by the State, however, that these instructions were correct as abstract propositions of law, and, construed along with other instructions given, make them altogether as a whole a correct statement of the law. As was said by this court in Abbitt, Adm., v. Lake Erie, etc., R. Co., 150 Ind. 498: “But even though the instruction in question, as formulated, upon any view, could be said to be a correct ex
In any view of the case, the giving of the instructions quoted was erroneous. Therefore the court erred in overruling the motion for a new trial. The judgment is reversed, and the cause remanded with instructions to sustain the defendant’s motion for a new trial. The clerk is directed to issue the proper order for the return of the prisoner.