133 Ind. 404 | Ind. | 1893
At the January term, 1892, of the Dubois Circuit Court, the appellee charged, by information, the appellants, France Hobbs, Daniel King, Samuel Spraggins, Thomas Smith, and five others, with the offense of riotous conspiracy as defined by what is known as the
There are six assignments of error, and they will be disposed of in their order.
The first assignment seeks to present the question whether a prosecution may he maintained by information filed while the grand jury is in session. The transcxñpt contains an order of the coux’t coxivening and charging the grand jury on the 26th day of April, 1892, and the contention is that the session of the graxxd jury must he presumed to have continued to ixxclude Apxfil 28, 1892, the day on which the motion to quash was sxxstained and the amended first count was filed. The action of the court iix chargixxg the graxxd jury was not in any manxxer connected with the action against the appellants, and it finds its way to this court oxxly by axi umxecessax’y recital of the clex’k. It is not a part of the record of proceedixxgs in this, cause as made by‘the trial court, axxd caxx ixot he considex’ed. Elliott’s Appellate Procedure, section 280; Pattee v. State, 109 Ind. 545. The question urged is ixot properly before ns for another reason. Sectioxi 1738, R. S. 1881, provides that the question can be raised only upon a verified plea in abatement. See, also, Hoover v. State, 110 Ind. 349.
¥e do not disagree with the proposition that an indictment or information may be bad for duplicity, as is held in Knopf v. State, 84 Ind. 316, cited by the appellants, but we do disagree with the contention that this information is bad for such cause.
Mr. Bishop, in his work on Criminal Procedure, section 436, volume 1, speaking of statutes of the class under consideration here, says: “ It is common for a statute to declare, that, if a person does this, or this, or this, he shall be punished in a way pointed out. Now, if, in a single transaction, he does all the things, he violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing one of the things. Therefore an indictment upon a statute of this kind may allege, in a single count, that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction and where the statute has “ or,” and it will not be double, and it will be established at the trial by proof of any one of them.” Davis v. State, 100 Ind. 154; Fahnestock v.
The third assignment of error and the argument of counsel under it raise the question of the correctness of the court’s action in permitting the prosecuting witness and another to testify to statements of the prosecuting witness, made out of court, in corroboration of his testimony concerning the identity of the defendants. Witnesses for the defense had testified to statements of the prosecuting witness made out of court to the effect that he had not recognized the defendants on the night of thfe acts charged, and the testimony, to which objection is made, was in the State’s rebuttal evidence. The appellants’ counsel seem to have confused the rule as to the character of a re-examinatio2i a2id that as to proper rebuttal testimony, if we may judge from the cases cited in support of their co2ite2ition. Iirdeed, the case of Coffin v. Anderson, 4 Blackf. 395, cited by them, holds that “ If the witness has not bee2i impeached, by proof of his having previously made statements inconsistent with his testimony, there seems to us to be no sufficient reason for the introduction of the corroborating evidence. But it is otherwise, if the witness has been thus impeached: it appears then to be proper to give the party who called the witness a2i opportunity to support him, by proving that the witness had, on other occasio2is, stated the facts to be as he represents them in his testimony. There are several cases directly in favor of the admissio2i, under these circumstances, of this corroborati2ig evidence. Cooke v. Curtis, 6 Harr. and Johns. 93; Lessee of Packer v. Gonsalus, 1 Serg. and Rawle, 536; * * Lessee of Wright v. Deklyne, 1 Peters’ Cir. Ct. Rep. 203; The People v. Vane, 12 Wend. 78.” We may add to the citations of Mr. Justice Blackford the
The fourth assignment of error is that the court erred in overruling the motion in arrest of judgment. Two questions are argued upon this assignment: first, that the charge was invalid in that it was by information filed when the grand jury was in session, and, second, that the “White-Cap Act” is unconstitutional, as in violation of section 16, article 1, of the State Constitution. Section 61, R. S. 1881.
The first of these points we have considered and passed upon in deciding upon the action of the court in overruling the motion to quash.
The second point, that the act is in violation of the provision of the Constitution, that “cruel and unusual punishment shall not be inflicted,” has the merit of possessing some originality; but the position assumed seems to be without authority to support it. We have been unable to find but a single instance in which this provision of the Constitution has been in question before this court, arid then the question was regarded as possessing no merit, and was disposed of without serious consideration. This provision of the Constitution is found also in the Constitution of the United States in the same words, and Mr. Story, in his work on the Constitution, says “it is an exact transcript of a clause in the Bill of Rights framed at the
From this author, we learn that the excesses forbidden were of a time far from which our civilization has grown. Looking to an analysis of the provision in question, with reference to the causes of its origin, the weakness of the contention of \the appellants will be apparent. The word “ cruel,” when considered in relation to the time when it found place in the Bill of Rights, meant not a fine or imprisonment, or both, but such as that inflicted at the whipping-post, in the pillory, burning at the stake, breaking on the wheel, etc. The word, according to modern interpretation, does not affect legislation providing impi-isonment for life or for year’s, or the death penalty by hanging or electrocution. If it did, our laws for the punishment of crime would give no security to the citizen. Neither is punishment by fine or imprisonment “unusual.”
Judge Cooley, in his work on Constitutional Limitations, says that the provision has application to that class of punishments which never existed in the State, or that class which the “public sentiment must be regarded as having condemned * * as ‘ cruel,’ and any punishment which, if ever employed at all, has become altogether obsolete * * as ‘ unusual.’ ”
It may well be considered whether in this country, at the close of the nineteenth century, and in this State, where there are no common law crimes, and where the legislative department of the government is intrusted with the duty of defining crimes and prescribing punishments, this provision of the Constitution is not obsolete, except so
As said by the court in Ligan v. State, 3 Heisk. (Tenn.) 159, a case in many respects similar to this: “ Every home in this State is entitled to be protected from intrusion and outrage, whether it be the mansion of the wealthy or the hovel of the poorest man in the land. It should be the pride and boast of every citizen to make the law so effective in its protective power that we may he able to say of our country, as Canning said of the peasant homes of England, “that the winds and rains may enter them, but, without the warrant of law, the king dare not do it.”’ We gladly adopt this language, and approve its force and wisdom as applied to the case in hand.
The fifth assignment is not argued, and the sixth is the same as the first.
Having disposed of all of the questions involved, we affirm the judgment of the lower court.