179 Ind. 531 | Ind. | 1913
Instruction No. 26, given by the court, is criticized. Without setting out its substance, it is sufficient to say that it correctly states the law as applied to the facts of the cause.
13. It is claimed that instruction No-. 9, given by the court, was erroneous. We think it was not prejudicial to appellant. In its verdict, the jury, pursuant to the provisions of §2238 Burns 1908, Acts 1905 p. 584, §350 found appellant grnilty of murder in the second degree and fixed his punishment at imprisonment in the state prison during life. In rendering judgment on the verdict, the trial court adjudged that appellant be imprisoned in the state prison for life, and further that he be disfranchised and rendered incapable of holding any office of trust for a period of ten years. Appellant filed a motion to modify the judgment by eliminating therefrom the order of disfranchisement and incapacity to hold office. The overruling of this motion is assigned as error. The Attorney-General in his brief, concedes that such action was erroneous, but insists that this court has power to affirm the judgment as to the conviction and imprisonment, and direct the trial court to strike out the illegal portion without awarding another trial. §2222 Burns 1908, Acts 1905 p. 584, §335; Kennedy v. State (1878), 62 Ind. 136. Section 8, Art. 2 of our Constitution authorizes the General Assembly to
We are informed by appellant’s brief that the trial court was of the opinion that such power is conferred by §6877 Burns 1908, §4681 R. S. 1881. This was §4 of the act of 1881, concerning elections, and reads as follows: “Every person undergoing a sentence of imprisonment, on conviction for any felony or misdemeanor shall be disfranchised during the period of such imprisonment.” We are of the opinion that this statute confers no power on the trial court, to adjudge disfranchisement, on the conviction of a person under a statute which fails to fix disfranchisement as a part of the punishment. The effect of the above statute is to prohibit from voting at elections all’ persons who, at the time, are in prison as a result of conviction for a crime or misdemeanor, regardless of the punishment therefor, adjudged by the court.
Note.—Reported in 100 N. E. 369. See, also, under (1) 12 Cyc. 877; (4) 2 Cyc. 1014; 12 Cyc. 877; (5) 12 Cyc. 585; (6) 12 Cyc. 874; (7) 12 Cyc. 620; (8) 12 Cyc. 661; (9) 12 Cyc. 601; (10) 12 Cyc. 607, 815; (11) 12 Cyc. 244; (12) 12 Cyc. 906; (13) 12 Cyc. 958;