*1
“
venue,
Changes
judge
changes
‘. . .
from the
provided
county
statute,
they may
for in the same
which,
any
action,
statutory definition,
had in
civil
protection
means
private rights
action for
the.- enforcement or
” n
private wrongs.’
and the
redress
petition
granted,
for a
requiring
writ of mandate is
grant
respondent
county.
of venue from the
Myers,
Jackson, J.,
Achor, J.,
par-
C. J. and
concur.
ticipating.
Reported in
Note. —
Shaw v. State of Indiana. 30,667. [No. rehearing Filed November 1965. Petition for January 18, withdrawn 1966.] *2 Davis, Indianapolis, appellant. Lewis of Manaban, Dillon, Attorney General, J. John and James Deputy Attorney General, appellee. Appellant charged (1) was in two counts with
Achor, J. degree burglary, (2) second He was and habitual criminal. on both of convicted counts and term two years One, on five and to on He Count a life term Count Two. assigns overruling as error the motion for new trial. his grounds (1) therein that the is not asserted verdict by evidence, (2) sustained sufficient and that the verdict was contrary to law. argument appellant presents propositions
In his the three can be which summarized as follows: joint burglary charge 1. The trial of the and the habitual charge appellant’s rights. criminal violated the constitutional by 2. The verdict as to the first count is not sustained satisfactory proof sufficient evidence because there no that appellant part burglary. the took proved 3. support One of the two offenses appellant’s conviction on the second count for crim- habitual requirements inal did not meet the of the habitual criminal appellant farm, statute because the was sentenced to the state is asserted be correctional institution for mis- demeanors, for felony and not a or felonies controlling prescribed in as the statutes. presented by appellant’s proposi reversible error is
No first court, (a) 2-61 of this Rule Under tion two reasons: grounds for new asserted as alleged of law errors specified therein, separately order must trial opportunity to rule may have an trial court the prosecution of question prior to the specific upon the law presented, argued not so appeal. The here was issue charge the joint burglary and (b) The the trial of appellant’s charge did not violate habitual rights. Barr v. State constitutional ap (Cases 334, cited F. 2d E. N. merely go pellant controverting case, supra, as Barr support charge evidence sufficiency of thereof.) A
Appellant’s proposition without merit. second also police appellant one of the positively officer identified July burglars on he Service Station saw inside Eddie’s burglary. Appellant Indianapolis at the time They accomplice this fact. testified denied *3 during entire trans- party to the not a the crime but was lying car in an he the action was the back seat- condition. inebriated the evidence most that for is that can be said weighed Conflicting conflicting. on evidence not be will
was
536, 538,
appeal.
(1963),
Metz
244 Ind.
v. State
515,
617, 618; Epps
(1963), 244 Ind.
v. State
N. E. 2d
459;
531,
232 Ind.
N.
Brown
State
E. 2d
v.
690,
808;
(1953), 231
227, 111
E. 2d
Moore
State
N.
v.
47;
E. Criminal
734 n. 33.
N. E.
9 L.
Law
2d
I.
§
Appellant
appellant’s
proposition.
next consider
third
We
charged
having
convicted and
on
been
sentenced
was
with
'
prior
only
Proof
made
was
as to
two.
four
offenses.
court
to
Appellant
the evidence before the
as
contends that
appropriate
for
trial
“In all
a motion
new
cases
which
preliminary
appeal,
procedure
shall
filed
such motion
and shall
upon
separately specify
grounds therefor each error
relied
however
as
motion,
arising
filing
up
. .
to the time of
.” [Our
such
and whenever
Supreme
emphasis.]
2-6.
Court Rule
Indiana
support
not
one
those two
convictions
sufficient to
conviction
one of
a
under
habitual criminal act because
prior charges
two
for
for
which he was convicted was
larceny,
he,
22, 1959,
petit
for which
on June
was sentenced
imprisonment
year
a term of
for
one
in the
State
Indiana
asserts,
which, he
is a “correctional
Farm
institution”
males are
which
sentenced
the commission
misde-
Thus,
asserts,
meanors.
he
the sentence for
this offense
bring
purview
not
him
of the
does
within the
habitual criminal
“penal
act since
such said institution is
institution
felony”
“penal
felonies,”
provided by
or a
institution for
as
(1956 Repl.).2
Burns’
Anno.
Ind. Stat.
and 9-2208
§§9-2207
construing
Under the statutes of
this state and
cases
them, the law is well established that crimes for
may
Prison,
accused
be committed to the Indiana State
(except
State Prison
department
Women’s
the correctional
thereof),
Reformatory
and the Indiana
are denominated as
against
felonies and that
other
all
offenses
the criminal
law
1905,
1,
169,
denominated as misdemeanors. Acts
ch.
§
584, being
;
Burns’ Ind.
(1956 Repl.)
Stat.
Acts
§
1897,
8,
53,
p. 69, being
ch.
Burns’ Ind. Stat. Anno. 13-407
§
§
;
p. 39,
being
ch.
Burns’ Ind.
§
pertinent
2. The
provide
sections of the habitual
criminal act
follows:
“Every person who,
having
convicted,
after
been twice
sentenced
_
felony,
in some
whether com
mitted heretofore or hereafter
and whether committed in this state
America,
or elsewhere within
limits
United
States of
shall
be convicted
hereafter
criminal,
circuit or criminal
court
this
state for
committed,
shall be deemed
taken
to be an habitual
imprisonment
and he or she shall be
prison
during
82, 1, p.
for and
his or her life.” Acts
ch.
§
109, being
9-2207,
(1956 Repl.).
Burns
Ind. Stat. Anno.
[Our
emphasis.]
“To
act,
authorize a sentence of
for life under
*4
allege
the indictment or affidavit shall
the defendant has been
previously
institution,
in their
of the third
convicted,
penal
twice
in some
felonies, describing
separately.
jury,
each
If the trial
verdict,
true,
find these facts to be
and convict such defendant
felony,
court,
passing
imprison-
trial
after
sentence of
specific term,
prescribed by
statute,
ment for a
proceed
as
shall
sentence
ch.
defendant
his or her
life.” Acts
p. 109,
being
(1956
Repl.).
Burns’ Ind.
Anno.
Stat.
§9-2208
emphasis.]
[Our
(1956 Repl.).
(1965),
Anno.
Stat.
13-409
Hunter v. State
§
207;
Dowd,
Ind.
207 N. E. 2d
Warden v. Sullivan
6, pp.
J.
217 Ind.
Thus, though petit larceny has even the crime of which been felony, may held to be since sentence therefor be years county reformatory to five or in the one jail exceeding year, or the for not one never state farm theless, the fact that was sentenced the state farm “misdemeanor” of the act under the section does not character of the state farm to that institution for or felonies. study A support appellant’s of the contention act tends to that, creation, at least Farm was its the Indiana State institution, intended to be a contrasted correctional with Reformatory the Indiana State Prison and the Indiana previously had been established. Burns’ Anno. Stat. (1956 Repl.) specifically 13-501 farm describes the state § as a “correctional institution” for the confinement of male jails formerly county violators committed to the or work- (1956 Repl.]. houses Ind. Stat. 13-507 [Burns’ § Similarly, 13-614, Burns’ Ind. Stat. Anno. 615 and 616 §§ provide department” for a “correctional of the subject Indiana Women’s Prison where females who were prison formerly commitment to such but were committed to county jails workhouses, could be committed. Further, it is to be noted that Burns’ Ind. Stat. Anno. (1956 Repl.) provides good-time the same rule apply shall to the Indiana State Farm and the “correctional department” at the Indiana Women’s Prison. This section applies Thus, the statute to no other institutions. it can be argued Farm, with reason that the Indiana State established institution,” aas “correctional depart- and the “correctional are, by legislative ment” of the Indiana Women’s Prison regarded intent, type to as the institutions, same dis- *5 recog- criminals, others, tinct from the incarceration of generic nizing, however, sense, in a that all such establish- (including county jails) may penal ments be described as institutions. although appellant state contends that was sentenced farm, though
to the and state even we consider that institution distinguished penal from as a correctional institution as a institution, “parole hold,” actually im- because of a he was prisoned which, admittedly, Reformatory a in the Indiana institution, require- penal by and reason of this fact the of ments the habitual act have been met.3 Thus the remaining question we must determine is whether necessary the habitual criminal under act it is that a convict imprisoned only previously penal twice (by court) to such institution that he also be sentenced but for such crimes.
Whether, sophisticated under a strict and consideration 9-2208, supra, and act, the habitual criminal it §§ necessary accused be “sentenced im- [to] penal institution,” prisoned provides arguable in some subject argued It can be discussion. on the one hand that following preposition “to” implied word “sentenced” is general from the context of the can sentence. It also be argued preposition omitted, that since the “to” is the condi- complied tions of the statute with in event convicted previously felon has “been twice convicted . . and . institution,” some whether or not the decree or de- by imprisoned expressly provided. crees which he was so legislature do not believe that the We intended the rhetorical require. the latter construction exactitude which would For subject example, the matter as same stated 9-2207 and §§ 2208, supra, phraseology punctu- is not identical either or Presumably, Department was made transfer of Cor- 266, 1, seq., 944, being rection created ch. et under Burns’ seq. §13-1501, Repl.). However, et Ind. Stat. quoted nor from has neither cited statute which authorized such Supreme transfer. See Indiana Court Rule 2-17e. significantly, more it ation. But is doubtful whether legislature contemplated that a mere administrative incarceration, appears here, such to be involved should be between, permitted make the difference a life sentence just years of' another sentence one to five for another guilty for which was found under Count One legislature do indictment. Neither we believe the intended might person that a be sentenced to life *6 petit larceny merely those acts of for which he shall have previously to been twice sentenced the farm for deter- days periods year of 60 minate to one each.
Ambiguities law, statutory, in the criminal which is shall favorably be construed most accused. Short v. State (1954), 17, 82; 284 Ind. 122 N. E. 2d v. Shutt State (1954), 120, 268; 283 Gingerich Ind. N. 117 E. 2d v. (1950), 440, 180; State 228 Ind. 93 N. 2dE. Caudill v. (1946), 531, 549; State N. E. 2d I. L. E. 175, p. Statutes §
Also, Metzger case of 113, v. State 214 Ind. 118, 13 519, N. E. 2d this court stated: “A strictly statute of this nature should be construed. Its
provisions by construction, should not be extended .. .” Under such a act, construction of the habitual criminal supra, we conclude that sup- the evidence sufficient port a conviction under Count Two of the indictment.
Judgment is, therefore, as to reversed the habitual criminal charge (Count Two) burglary charge and affirmed as to (Count One).
Myers, J., Jackson, J., concurs. C. concurs the result. Arterburn, J., Two, dissents as to the reversal Count with Landis, opinion, J., in which concurs. Opinion
Dissenting find I to the reversal J. I must dissent Arterburn, charge appellant on the habitual conviction of the (Count Two). provides: part Habitual Criminal Act imprisonment for life under “To authorize a sentence allege act, or affidavit shall indictment convicted, previously defendant has been twice felonies, de- and scribing find these some verdict, separately. jury, in their each If the trial of sentence of true, defendant and convict such facts be court, passing felony, the third after the trial imprisonment statute, ment prescribed by specific term, for a imprison- proceed shall to sentence the defendant (Our italics) her life.” Ch. his or being Burns’ Ind. Stat. § us,
In
of the
the case before
one of the
convictions
appellant
petit larceny, for which he was sentenced
was for
to the Indiana State
is conceded
Farm.
It
majority
(and
opinion
holds)
so
that a conviction
petit larceny
“felony,”
the statute
offense
since under
person
punished by
may
or
which a
death
*7
prison
“felony.”
ch.
in the state
is classified as a
169, 1,
584, being
Burns’ Ind. Stat. Anno. §9-101
provided
The statute
force at
the time
conviction
person
petit larceny may
that a
convicted of
at
However,
the state farm.
this does not
the character
felony.
of a
In re
the crime from that
Sobieski
(cid:127) point I legislature further out has made no distinction between institutions and correctional insti- tutions, majority opinion attempts as the to make. The 1953 266, p. Acts, provide ch. government super- for the vision of the Prison, Indiana State Reformatory, Indiana Prison, School, Indiana Women’s Boys’ Indiana Indiana Girls’ Farm, alike, School and the Indiana State without distinc- tion as to names.
The title the Act reads: creating Department “AN ACT pre- of Correction and scribing powers thereof; creating offices, and duties commissions; providing manage- boards and ment and thereby for the custody of state correctional institutions and for the persons thereto;. control of (Our italics) committed ..” Although Chapter repealed of the Acts of 1953 was which, Acts of short, provides ch. 343 for a Department Correction, Commissioner of the title solely 1961 Act likewise referred “correctional institu- custody tions and persons and control of committed thereto; ...”
The majority opinion makes a needless distinction without reason. Landis, decision of the trial court should be affirmed.
J., concurs.
NOTE, Reported in 211 2d N. E. —