*1 200 change or an invitee and his status would
licensee
not
v. Beacon
Bowl,
(1968),
Kalicki
law set out herein.
Inc.
143
Ind. v.
673;
App.
Ind.
238 N.E.2d
Standard Oil
Co. of
Henninger
(1935),
App.
706;
Clark,
Ind.
100
N.E.
Admx. City Huntington (1920),
App. 437,
453;
Indiana v. Meissner
301, 128
Standard
N.E.
N.E.
Oil
App. 552,
For stated above it is our properly appellee’s judgment sustained motion for properly jury on evidence instructed to return a appellee. verdict for
Judgment affirmed.
Robertson,
Lybrook,
P.J. and
J. concur.
Reported at
Note. — Gray v. Lee
Willie of Indiana. January 23, 2-673A143. Filed [No. 1974.] *2 McNamar, Steers, Klee, LeMay, David F. Sullivan of & Indianapolis, appellant. Sendak, Attorney General, Meyers, L. H.
Theodore John General, Deputy Attorney appellee. Gray Defendant-appellant convicted was
Sullivan, P.J. carrying pistol a without a license and was sentenced year imprisonment. one controlling offense, at the 35- statute time of the IC (Burns 1956)
23-4-3, provided: Ind. Ann. Stat. 10-4736 § person carry pistol or “No shall a vehicle on or person, place place except in his about his of abode or fixed pro- business, a license therefor hereinafter without vided.” following section, however, exception an contains [IC (Burns 1956)]
35-23-4-4, as follows: Ind. Ann. 10-4737 Stat. § shall preceding section provisions “The 10-4736] of the [§ carrying any person pistol a apply unloaded not while to .. . place purchase his wrapper and in a secure from business, repair place or back place a or or to home moving from place or business or his home another.”1 place abode business 35-23-4.1-3, superseded by IC were two considered 1. The sections (Burns 35-23-4.1-4, Supp.) and IC § Ind. Ann. Stat. 10-4751c (Burns Supp.) effective October Ann. Stat. 10-4751d (cid:127) us, Gray In cause operating before was automobile his evening on the Indianapolis 1972 in June and was stopped police a Gray officer because and two other occu- pants approximated description vehicle of three suspected Gray stepped robbers. When out of car his at request, Gray officer’s pistol advised officer had acknowledged his belt and when asked that he did have permit for the firearm. Gray upon seeks reversal two theories: (1) The evidence was insufficient to at time show that carried, weapon loaded; permitted and that as by statute, transporting pistol he was the unloaded from place wrapper. business to his home in a secure (2) year imposed The one capricious alternative arbitrary judge in that the trial failed to utilize penalty provided, i.e., a fine.
EVIDENCE WAS SUFFICIENT TO ESTABLISH
GUILT OF DEFENDANT *3 argues Gray that prove pistol the State failed to the points merely He carried was loaded. out that the officer pistol Gray stated that he obtained the from identified and he six rounds ammunition at the time of trial in were envelope. marked specifically The officer not did state that weapon the ammunition inwas the at time the confiscation. precise testimony His point on this is as follows: “Q. Officer, going you marked, I’m to hand has what been purposes only, identification as ‘State’s Exhibit ’, you (1) identify One if and ask it? can Yes, initials, D.A.H.; my
A. I can. It’s dated marked with 6-21-72; pistol, envelope it’s caliber and the a Rhone ’22 (6) six live ammunition. contains rounds Q. you ? Where did obtain this Gray. A. From Mr. Willie subject objection, time,
MR. At the LITTLE: this State evidence, marked, offers into what been ‘State’s (1)’, Exhibit One objection. MR. No SOBEL: Alright, it in evidence.
THE show COURT: (1)’, WHEREUPON, EXHIBIT ONE NUMBER ‘STATE’S ’22 CALIBER BY WITNESS RHONE IDENTIFIED PISTOL, AS (6) LIVE SIX AND ENVELOPE CONTAINING AMMUNITION, INTO ADMITTED WAS OF ROUNDS EVIDENCE, OBJECTION.” WITHOUT Day N.E. in As stated 357: 2d statute another created and an is statute “When or another section thereto, ment or affidavit offense exceptions statute makes of the same indict- necessary prosecution in the is it not stating negate exception by true, being That defendant does not come within same. excep- prove upon the state not incumbent then it is charge.” alleged they not be in if need
tions required prove that Here, therefore, not the State was pistol loaded. Gray’s Gray exception claims may, within which it
Be that as only weapon but also that the be unloaded requires not to fall wrapper. in a secure it be carried wrapper” phrase as- since the “secure Gray contends that construed, judicially Firearms Act has not been used having classify weapon here as should we i.e., belt securely wrapped, at side confined his may clothing. else construed as a Whatever pistol that a not a “secure wrapper, hold we secure possessor’s merely belt carried wrapper” it is when it contained readily accessible as if were it where it person. We have no doubt carrier’s on the holster safeguard regard Legislature in this intent of transport large, but those who seek to only public at therefore wounds. We hold from self-inflicted firearms *4 by contemplated must be wrapper” the statute “secure injurious ready to the or access prevent immediate as to such weapons thus carried. capabilities wrapper”. pistol in The a “secure
Gray have his did not support conviction. to therefore sufficient evidence THE COURT’S WITHIN THE IMPOSED WAS SENTENCE NOT ERRONEOUS AND WAS DISCRETION Gray’s controlling imposed provision penalty The 1956) (Burns and Ann. 10-47472 Stat. offense was § imprisonment $1,000.00 or fine of not more than authorized a year nor any period more of not less than one determinate years. ten than Gray’s sentencing, inquired
At the counsel whether time imposition consider of a fine. The Court the Court would referring Tate declined to do so and v. Short 395, 91 stated: U.S. S.Ct. Well, name of “THE COURT: there’s a fellow Tate, Short, name of to the United who took a fellow the people Supreme Court, poor like a lot States and hurt
your client.” colloquy continued as follows: Honor, fine, pay a if there “MR. Your he could SOBEL: job good job, imposed. was a fine a had that He has and he’s year. for a impose THE I think that fine I in here COURT: would burdensome, unfair, beyond would be and it would be capacity pay. figures up MR. lars. He has ployer We discussed to Thousand Dol- SOBEL: good job, job. and he will lose the His em- exceptional employee. stated he was an (1) year day. (1) THE COURT: One less He’s your’s, Sheriff.” agree appellant that the statements of would with We set forth indicate hereinabove would seem to mis-interpretation the Tate case. The States United Su- preme merely constitutionally there that it im- held permissible imposed imprison- convert a fine term of into a pay ment for a defendant unable the fine. fact remains impose however, permits the statute here the court imprisonment. fine either a superseded by 35-23-4.1-18, Ind. Ann. Stat. This section was IC 1,1973. (Burns Supp.), 10-4751r effective October
205 v. Gingerich (1948), Ind. in State 226 Supreme Court Our prohibition constitutional held that the 678, N.E.2d 47 83 against punishment a limitation and unusual cruel Assembly upon upon the and not the acts of General acting trial court frame the discretion of a within the Where, imposing penalties for offense. of a statute the work keeping prescribed here, penalty in assessed is with as may legislature, interfere. cannot We not rewrite we discretion substitute nor absent an abuse of what statute McHaney v. equitable penalty. deem a more See we to be 590, 284; (1972), App. 288 Landaw N.E.2d State 153 67, 230. (1972), 258 Ind. 279 N.E.2d State judgment hereby affirmed. The separate
Buchanan, concurs; White, concurs, with J. J. opinion.
Concurring Opinion agree appellant has failed to make J. I White, showing sentencing of abuse a sufficient of discretion would, justify any at the I how interference level. question ever, decision the our reserve for future what revision sentences for defendants role “review and is in the provided 7, cases”, in Article in all criminal as sections 3, 4, Indiana, as amended November 6 and Constitution January 1, McHaney 1970, Neither v. State effective 298, 590, 284, App. N.E.2d (1972), 33 Ind. Dec. 153 Ind. 230, 67, 258 Ind. nor Landaw v. N.E.2d 378, question trial choice Dec. involved a court’s penalties authorized alternative statute and are between point not in here. therefore Indiana, as amended Constitution of
Article section January 1, 1972, 3, 1970, effective includes the November have, Supreme appeals provision that Court shall all “[t]he questions cases, power all law to review criminal imposed.” review and revise and to Study pertinent comment of the Judicial Commission drafted section is: (direct appeals Supreme “In all criminal before the Court appeals of questions as Court from a well those from the Appeals), power review has Court and to and revise sentences. law review appellate power include proposal that criminal cases efficacious power review is based on the sentences power put by use to which that England.” Appeals in Criminal *6 judicial article of constitu- 6 this new our state of Section other than ad- provides that in all cases direct tion review of decisions, Appeals Court ministrative jurisdiction terms and “shall exercise under such Supreme specify by rules as the shall conditions which Court right however, provide shall, in all an absolute cases by appeal provided rule, review and to extent to defendants in all criminal of sentences for and revision cases.” comment pertinent commission is: cases, directly appealable Supreme “Criminal to the by Court, and authorized rule to be reviewed the Court Appeals kind shall have such of review as the rule
permits.” provides: Appellate Rule 4 Supreme
“(A) juris- Court .... shall have exclusive diction of:
[*] [*] [*] “(7) Appeals tences) imposing ment or reference to conviction [10] years. a minimum sentence in criminal cases from relief, If the the sentence jurisdiction a sentence of appeal is from the denial of originally imposed; shall death, of greater be determined judgments life imprison- than ten post- (sen- $ $ $ cases, appeals shall “(B) In all other taken be to .... notwithstanding Appeals, law, statute the Court appeal Supreme providing for direct to the Court rule or Indiana.” anything there to be found rules is in the
Nowhere criminal “kind review” cases shall have suggests Appeals from review to different Court appealable Supreme directly shall criminal cases to Court 4(B), my opinion that court. therefore is in that It AP. have 6, supra, supra, given us, pursuant 7, to Art. “the [same] § imposed” in all power and revise the to review sentence ... gave appealable 7, 4, supra, to criminal cases us which Art. § appealable directly Supreme Court in cases to it. Sekerez Sanitary Commissioners, (1973), et al. 261 Ind. Board 398, 533, Dec. N.E.2d Ind.
Although Supreme the Indiana Court has had no occasion to grant interpret appellate power new constitutional this imposed”, it and revise the did allude to it “review Dickens v. State 284, (1973), 613, 260 Ind. 295 N.E.2d 36 Ind. degree 275, Dec. 282. There the Court reviewed second murder conviction and sentence held facts “these manslaughter”. only justify voluntary can conviction for authority for As its mandate reduce the sentence man it cited Hutchinson v. State slaughter 226, 828, 10 Dec. 225 N.E.2d and added: authority “Furthermore, modify revise sentence has constitutionalized. Art. 7 Constitution of Indiana added November [as original.) (Bracketed clause 1970].” *7 infer that that the writer that One could from reference judicial nothing opinion article had believed the new added pre-existing power. Supreme inherent But Court’s even accurate, preclude it if a such an inference is does future holding judicial power it is the inherent a within appellate jurisdiction ap nullify by court of constitutional judge’s propriate revision of discretion in abuse sentencing. (1932), 241, 245, State Chism clearly implies possessed 718, N.E. long judicial power new article ratified before the exceedingly long by fact, list In of cases cited the voters. 754, 1878, majority indicates Law 24A C.J.S. Criminal fixing trial court be: “The discretion of the rule to sentence, punishment, or costs within prescribed the limits by law will not be revised, except reviewed or abuse.”1 for (My emphasis.) dearth Indiana criminal opinions in which
sentences have been reviewed determine whether there has been an abuse may large of discretion be due measure to the fact that there are legislature so few instances in which the sentencing seen fit to vest discretion in the trial court.2 may It large also in equally be due measure to the reluctance appellate judges to assume responsibility deciding for anything “questions but finally, law”. And little no thought given seems to have been making to the matter of record possible from it to ascertain whether sentencing judge abused his discretion.
It seems to me so obvious indisputable, as to be inclusion 4, in new Article section granting of the clause power “the ... to review and imposed” revise the sentence purpose changing was for the merely situation and not purpose for the constitutionalizing existing exceedingly practice. limited review and revision This is underscored the Commission comments in reference to “the use efficacious power put to which that has been the Court of Criminal England.” Appeals in report submitted to the Project American Bar Association
on
December,
Standards
Criminal Justice in
1965, entitled
The Review Criminal
England,
Sentences in
by Dean Daniel
(the
report)
published
Meador
J.
Meador
Appendix
C
approved
to the
draft of the American Bar Association Stand-
Appellate
Relating
ards
Review
Sentences. Reference
report,
to the Meador
themselves,
as well as to the standards
appears
1. This also
to be the standard for review of the trial court’s
suspension
revocation of
63,
of sentence. Davis v.
63, 66,
267 N.E.2d
Indianapolis. *8 ABA comments, the other materials included the judicial suggest the new pamphlet all the drafters of scope and revision review article had mind that the of the than that much of criminal sentences be broader should in Indiana. yet appellate level has at the exercised which the glance (both those mere at the ABA Standards court) sufficient appellate trial court and for the those possible lawyer presently convince Indiana it is to instances. to in but Indiana follow them few for the courts Legislature much the fit to trust courts with a Until the sees to range discretionary power to fit the sentence wider particular has particular to individual who crime and the judicial adoption standards would it, those committed Legisla- in those rare instances in which little. But avail any range given court discretion ture certainly sentencing, should of that discretion the exercise appropriate when- open revision appellate review and to permitted has been discretion the record reveals ever abused.3 Legislature an instance
The case at bar involves which range than the usual trial court more has invested the with sentencing judge sentencing power. discretionary Here the term only authority fine and a elect between a had making election, was imprisonment, but after limits) fine empowered (within amount determine authorized length imprisonment. court or $1,000.00 than or impose not more fine of statute4 to relating of sentences review 3. 'The ABA standards include: “PART III. OF REVIEW SCOPE reviewing 3.1 court. Duties reviewing (a) obligation to make its It should be the designed objectives of sen- to effect own examination the record tence stated in section 1.2.” review as (Burns Repl.) 1971, 35-23-4-14, Stat. 10-4747 § 4. IC Ann. 1, 1973, repealed, P.L. Acts which effective October 10-4751r(c) 1971, 35-23-4.1-18, present statute, Ind. Ann. Stat. § IC provides (Burns Supp.), is misdemeanor the first offense $500.00, both, up up imprisonment or a fine to six months *9 imprisonment year of term of not less than a determinate years. prison He chose the sentence than ten rather more If able to determine than the fine. we were from the record discretion, an abuse of choice was we set should it aside. say penalty keeping that because “the assessed is in
To interfere”, legislature, the prescribed cannot we with ignore duty I the believe the to which constitution and the Supreme upon have cast In us. this con- rules impressed Supreme I the text am with the words of Court of McCleary (1971), 49 in v. State Wisconsin Wis.2d N.W.2d 519: legislature sentencing discretion vested a in the “[T]he judge, basis. as the basic explainable on rational and which must be exercised a logic, It in the face reason as well files and [flies] precepts ideals, of our American conclude ju- legislature authority in the vested unbridled the carefully diciary obligations spelled it the so out duties when judges aspects in all other criminal legislature range provides proceedings. Just because the a that, a years, in ten it would nonsense to conclude be case,
particular it make no difference in would terms legislative year intent sentence was for one whether or ten.” discussing sentencing, frequently “In review of we have (supra, p. 150,
restated the Tuttle caveat 2d 21 Wis. 11) p. : N.W.2d *‘* * question this should treated in terms strong against policy interference the discretion of of the trial with * * passing court in sentence
[*] [*] [*] sentencing judicial discretionary “It is thus clear this court same manner that and is reviewable act discretionary are to be reviewed.” acts all reviewing bar, case, at as in the case court was In that judge by the failure of the handicapped to state felony subsequent may offense is a for which a determi- be assessed. imposed year and a fine one-to-ten shall be of $100.00 nate sentence $1,000.00. Being court, supreme he chose.5 sentence reasons for remedy position however, in a the Wisconsin court was hoped in it is to be our that defect a manner which eventually Court will find meet. (c) adopt 2.3 of the American Bar Associa- “We Standard Sentences, Relating Appellate
tion Review of Standards page 11, provides: sentencing judge required every in case ‘The should be selecting particular sentence state his reasons for imposed. Normally, the record this should be done In time sentence. presence the defendant at the sentencing judge inter- deems it cases in which est fully the not to reasons for defendant state defendant, presence should transmission to the review- prepare such statement *10 ing part record.’ court as a only sentencing is not purpose statement “The trial to facilitate the but also review to aid requirement sentences. judge’s rationale of his sentencing easier will make it stated be reasons the for to in lead relevant factors that judges focus on trial Youngdahl Judge Luther has said As their conclusions. Program, Sentencing Den- Institute Opening the Remarks good 387, (1964), ‘a sentence Colorado, F.R.D. ver, ” reasonably explained.’ be can is was able to the Wisconsin fortified Thus giving ap- of a statement of reasons as treat the absence It noted that pearance abuse of discretion. of an (discretion ap- is to exercise discretion “the failure record) required, discretion is con- when parent from not, however, discretion. will set abuse of We an stitutes reason; rather, obliged to we are sentence for aside a determine exercise record to whether search imposed can be sustained. the sentence proper discretion duty only not to interfere with discretion of our It is not addition, duty is, our affirm judge, it but the trial it sustain- the facts record appeal if from on sentence able 522.) (182 discretionary at act.” N.W.2d proper aas judge’s trial solely on the relies brief appeal Defendant’s sentencing, Tate Short in reference to remarks, at post. will be discussed judge’s partial statement trial 5. Our 401 U.S. an S.Ct. show abuse of discretion. however, is, There much more in the support record to prison trial court’s choice of a minimum than (if fact) it mere fact be a Tate v. Short it rendered impracticable for the trial payment to coerce of an adequate impose jail fine sentence of less than one year in the form aof fine “pay” only which defendant could by “laying-it-out” per day. at Appellant’s argu- five dollars ignores completely precommitment ment report which alia, includes, inter prior convictions, defendant’s record of including theft, trespass, malicious shoplifting, carrying weapon. a concealed strong argument could have been made to the trial court employer’s testimony on his
based at that defendant qualified responsible, person, “a position” in his and on precommitment investigator statement to the feels path defendant started on a of correction since he has living. been able earn a decent This seems to be cor- by the fact roborated that defendant had no arrests after April 1, 1968, present years until four arrest later, which apparently only came about companions because he and his description resembled the hold-up suspects. testimony His carrying gun only that he protection wholly unrefuted.
But whether the of the community members will at less injury persons risk of property *11 to their from defendant year after prison they he serves his than would have had permitted to continue his employment, was for the initial court’s determination. On the record we whole say cannot that he abused his discretion in the decision he made.
I therefore concur.
Reported at