*1 rehearing Petition for denied.
Arterburn, J., J., Jackson, grant concurs. votes re- hearing. Reported Rehearing in 210 N. E. 2d denied 212 852.
Note. — E. 2d 544. N.
Smith v. of Indiana. 30,791. Rehearing [No. Filed November denied December 1965.] *2 McCarty O’Connor, & McCarty, Virgil Thomas J. J. Brookville, appellant. for O’Connor, of Raymond Klagiss, General, I. Attorney Dillon, John J. General, appellee. for Attorney
Deputy appellant counts four J. The Arterburn, with:
1. Assault. weapon. Drawing dangerous
2. murder, and intent to 3. Assault of a loaded Resisting hy the use a sheriff arrest shotgun. except guilty the fourth on all counts was found
He guilty of arrest), found under (resisting jury’s was as follows: “simple The assault”. “We, Jury, simple find the defendant Assault affidavit, as contained Count and that he be fined (not exceeding $500.00) $100.00
in the sum of and that he imprisoned days (not exceeding for a of 90 six months, with any however, optional the assessment of time is you).” objection making any Without at the the return any alleged therein, defect thereafter filed a motion to on the ground place imprison- that the should have fixed the jail county ment either in the or in the Indiana State Farm. following provided of the court the verdict imprisonment at the Indiana State Farm. (1956 fixing Burns’ Repl.) Ind. Stat. Anno. penalty assault, upon person for an states that conviction such . exceeding “. . shall fined in sum not five hundred ($500.00), dollars to which be added county jail exceeding or in the Indiana State Farm not *3 (6) six months.” (1956
Burns’ Ind. Repl.) provides Stat. Anno. 9-1819 part: jury, “When the except is found provided for, in state, (two) sections, cases next three must punishment the amount of fine and inflicted;
be . . .” This applicable section charges and convictions under the assault Appellant argues statute. that under the above
section it duty was the of the and not the court imprisonment to fix the in the Indiana State Farm or county jail. opinion, In appellant’s our contention by verdict fixed was clearly defective is place erroneous. The of confinement is fixed the statute court, entering and the judgment, discretion, had no compelled but statute, under the imprisonment to fix the at the Indiana State Farm.
Burns’ Ind. Anno. (1956 Stat. Repl.) provides: duty circuit, judges superior, “. . . shall all city criminal and courts to commit thereto so far as the capacity permit, persons of the institution will all male who age are above Boys’ of commitment to the Indiana School, who shall have been convicted the violation of any criminal law of this State now in force or hereafter enacted, any or of ordinance now in force or hereafter enacted, sist for which consists or shall con- imprisonment any jail county or ... workhouse. Provided, however, is imprisonment adjudged That when sixty (60) days less, or or where the fine and costs as- court, paid replevied, sessed not or where would require sixty days the defendant to more than serve any county jail workhouse, trying or the court such case shall have discretion to commit such defendant either jail or proper state farm to the or workhouse of the (Our county; italics) . . (1919), 355, have held in
We Banks State v. Ind. 691, 692, 123 N. E. imprisonment “. . ninety.days, . where the term of duty it was the absolute the court commit the de-
fendant to the state farm.” To same effect is Graves v. E. jury’s
132 N. provided imprison where the days jail.” ment for county “in the law place imprisonment settled that the of an individual provision convicted violation of of the criminal judge law is jury, pur determined trial and not the mandatory provisions suant to- the discretionary statute. When the days is to more than 60 age and the individual is above commitment of the Indiana Boys’ provide School imprison and the statute does not prison reformatory, in a judge ment state the trial must commit convicted individual *4 Indiana State Farm. appellant, however, states that Burns’ Ind. Stat. Anno. (1956 Repl.) 1927, 200, 1, p. 574], 9-1819 ch. § [Acts which § provides jury cases, the shall fix the in assault repeals Burns’ Ind. (1956 Repl.) Stat. Anno. [Acts § 1913, 236, 8, p. 1919, 33, 1, ch. 660 as amended Acts ch. §
130 provides 1, 224], for p. which ch. 81 Acts 77 ,p. fixed where the in state farm confinement days. than is more statutes, no find two we of these
Upon an examination any implied repeal of old to create sufficient conflict any repeal specifically not The 1927 Act did statute. indulge cannot provision The court of the 1913 Act. implication repeal by unless there presumptions statutes, find and we in the two irreconcilable conflict is an inconsistency in this case. no exists such 1913, supra, Furthermore, amended in 1931 the Act of was day period fixed by restoring had been the 60 repeal by implication, days. If at 30 there were Act of 1927. prevail over the Shew amendment of 1931 would (1956), N. E. 2d 290. maker v. 236 Ind. ,We reality judg point further out case proper form. It the verdict which ment was appellant If attacks in this case defective. proper appellant felt the verdict of objections form, may idly no not stand and make then, permit discharged, after thereto and finally separated and it is too late correct has may verdict, attack the verdict as defective. One amend the objections during proper time not fail to make the trial at alleged later, revealed, too error is after when remedy alleged error, predicate error thereon. late to such waiver, judicial proceedings constitutes a since Such conduct objection orderly in an fashion such that be conducted must A promptly it is before too late. be remedied able errors the first may not be attacked defective verdict judgment, through on to correct a which is correct motion E. Hobbs 208 N. 2d its face. Lane v. rendering upon judgment, case, in this The trial court shotgun used sheriff to confiscate directed destroy pointed out in the same. It briefs only procedure is authorized statute under which such *5 is Burns’ (1965 Supp.), Ind. Stat. Anno.
provides: “In person violating case the arrested found by wearing carrying weapon
this statute there such concealed part judgment shall be entered as conviction of said crime an order to the sheriff directing the destruc- weapon by justice, mayor, judge, tion of such municipal city judge, magistrate, judge court of the criminal or circuit court before whom or in whose court such cause pending, is and the sheriff shall execute the same in the manner and at fixed such order.” carrying The was not under a statute concealed weapons, pointed and no other law out us is under weapon confiscated,
which the could be inas this case. We erroneously therefore find court made an confiscation, order of and it directed to rescind such judgment directing and that of the the confiscation gun described. of the trial court is otherwise affirmed. Myers, JJ., Landis, Jackson, J., concur. C. concurs in separate opinion Aehor, result with J., par- to follow. ticipating.
Separate Opinion Jackson, C. J. I concur in the reached result the ma- jority opinion, point but majority opinion wish to out that the predicated on an conclusion erroneous of law. Judgment”
The “Motion Modify appellant, filed omitting heading, signature parts appellant, formal reads as follows: defendant, Henry Smith, “Comes now the above cause, entitled and moves the Court to day March, herein rendered on 9th for the
following reasons: (a) Jury “1. That verdict of the rendered herein 3, 1964, ‘We, Jury, on December was as follows: find Guilty of Count the Defendant Not 1 herein ‘ Bommer, Chester J. Foreman’ “s/ Guilty “(b) ‘We, Jury, the Defendant Not find
of Count herein Bommer, Foreman’ J. Chester s/ Guilty Not “(c) ‘We, Jury, Defendant find the 3 herein of Count Bommer, Foreman’ Chester J. s/ Guilty Defendant, ‘We, Jury “(d) find the Affidavit, simple and 4 of the contained in Court assault as *6 and, that sum of that he fined in the be $100.00 days. imprisoned period of 90 he be for Bommer, J. Foreman’ Chester s/ Arrest, charge Resisting of “2. That Count 4 was of ‘Assault.’ included the lesser crime which penalty Section That for Assault under “3. Replacement) (1956 of Burns Revised Statute of Indiana exceeding five Part is ‘a fine in sum not Vol. added im- ($500.00), be hundred dollars prisonment to Farm in the Jail or in the Indiana exceeding (6) months.’ six finding simple “4. That of assault was verdict guilty a misdemeanor. defendant of provides: That When “5. 9-1819 of said Statutes Sec. except guilty, jury, in the cases the provided defendant is found state, sections, (two) three must for next be in the inflicted . .’ fine and the verdict amount of . March, day That the said Court on the 9th “6. Judgment jury herein, upon as
rendered follows: the verdict of the (leaving Caption) out “ Briden- of Indiana Franklin the State now ‘Comes Henry Prosecuting Attorney, comes also and now hager, by Virgil person J. and herein Smith, the defendant attorney, in accordance and now the Court McCarty, his against the returned heretofore with the guilty the defendant cause finds this (4) in count Four of the affidavit contained as of assault charged and with the he fined $100.00 and herein imprisoned cause, in the Indiana and that this costs State days. ninety (90) for a Farm “ ORDERED, ADJUDGED AND IT IS ‘WHEREFORE Court, in accordance with the all DECREED against this the defendant in returned jury heretofore cause, the defendant assault contained herein, 4 in Count the affidavit that he his fine make in the sum of and that he be with the cost $100.00 action, in State Farm for a imprisoned and that he be in the Indiana period Ninety days. “ ORDERED, ‘ALL OF AND WHICH IS ADJUDGED adjudged DECREED finally disposed execution of the the Court and this case is to be charged, of and the Sheriff is judgment. “ by Virgil McCarty ‘AND THE NOW DEFENDANT J. his modify files motion to against heretofore returned cause, being him in this said motion words figures following (H.I.), and to-wit: the Court now con- duly siders said motion to now and same and sufficiently advised now overrules and denies prays now authority the defendant appeal Court Supreme to the Court of the State of from the Indiana ruling denying of this Court the defendant’s motion to modify the judgment against cause, prays prays him in this and and pending appeal, Court be let to bail said the Court to fix appeal bond, the amount of the and now grants the bail request Court appeal be let to pending appeal said appeal and fixes the bond in the appeal And now sum said defendant files his $2500.00. herein in (his bond the sum with Mamie $2500.00 Smith wife) Becker, Becker, and Alvin and Anna Mae *7 husband wife, approves and as sureties thereon and now the Court custody bond and defendant pend- said ing the is released from appeal, figures the said bond is in the words and fol- lowing, (H.I.). to-wit: by Henry attorney, “AND NOW the said Smith his files Prosecuting Attorney with the Clerk and serves on the his appeal case, of notice and this and the same in words figures following: (H.I.). ORDERED, “‘AND IT NOW IS ADJUDGED AND by County DECREED the Court the Sheriff of that shotgun by Henry the assault, confiscate used Smith destroying by the same. “ ordered, adjudged OF is by ‘ALL WHICH and decreed the Court and this cause is continued.’ verdict, pertains “7. That said insofar as same to im- prisonment days spent, and where same are to be is so ambiguous part judg- as to be void and thus that of said ment, imprisoned defendant that in the Indiana State ninety (90) days- void, Farm for a is erroneous illegal. and to the Court moves said defendant “8. That imprisonment part judgment refers to that that said (90) days, ninety period Farm for Indiana judgment part of that said correct to strike out and and or be judgment ‘that put the words from to strike said ninety period of imprisoned Farm for a in Indiana State days.’ tell from the Court could not “9. That imprisoned they to be for defendant intended whether Farm, for a Jail, County or in the Indiana State in the period can assess where the only days, one who ninety (90) and the is days of and in a misdemeanor. confinement is specify or did not ask the “10. the Court That discharged they were on the their verdict before correct evening' they they were returned their evening discharged on the December following judgment part said should “11. That in that be stricken out from said should be modified judgment, next to sought is to be stricken out and which so paragraph of said last words as follows: “ ORDERED, AND DE- IS ADJUDGED ‘And NOW IT County of this con- Sheriff CREED Court shotgun by Henry fiscate the used Smith assault destroying that the uncontradicted the same.’ for the reason shotgun evidence in said cause showed that said was Smith, defendant, Henry property of the son of defendant, property as the not the uncontra- taking the dicted that said defendant was evidence showed shotgun shotgun neighbor purchased had who son, his said son owed the defendant from his said as much and since shotgun for, money than the was sold more shotgun hoping deliver the he could said said pay get money and then his son would purchaser and defendant, his son owed said him what giving in Indiana there no statute reason further the right of Franklin the Sheriff Court the shotgun, by destroying the same. the said to confiscate “ judgment shows reason that for the further ‘And original part of the announced was no that it *8 open Court, announced Court and was not filed his Motion to prior the defendant to the time Court Judgment paragraph the second Modify the shown judgment. paragraph “And for the further reason that said order- ing gun confiscation destruction of said was not jury null and is and void. “WHEREFORE, said defendant moves the Court to modify pertains imprison- said insofar as same ninety ment the Indiana State Farm for a days, judgment, and strike from same said and also to pertains said insofar as same shotgun that the Sheriff of said confiscate the used by Henry by and by destroying same, Smith in the assault striking out all of confiscating said order in reference to destroying gun.” shot said Appellant’s, governed provision motion would be Rule 2-40B this court. agreement
I am majority the conclusions of the opinion 574, 200, 1, p. 9-1819, the Act of ch. § Replacement Burns’ repeal did not 13-507 Burns’ 1956 Replacement, reasoning and their in support citations thereof. disagree
I majority with the conclusions stated opinion immediately above their citation of Lane Hobbs v. 208 N. E. 2d for the reason case support cited does not such conclusions. Such con- clusions read: point “We further reality out in this case that the which the judgment appellant appellant proper was in form. It the verdict attacks in this case as defective. If the felt the in proper was not form, thereto and after may idly by not stand objections and make no permit discharged; then, separated finally has and it is too late to correct One or amend the attack the verdict as defective. may objections during not fail to make the trial at proper alleged revealed, when the error later, after it remedy alleged is too late error, such predicate error thereon. waiver, Such conduct a constitutes judicial proceedings since orderly must be conducted in an objectionable
fashion such may errors be remedied promptly be before too A late. defective verdict through attacked for the first time motion correct judgment, which is correct on its face.” *9 136 reason- under the the
In in fact the truth and opinion is separate expressed majority this ing in the part incor- in is correct; judgment court it the the Amendment 1931 court, my opinion, under the The rect. the verdict Replacement, on 13-507, would Burns’ 1956 obligated terms of such statute be herein rendered require Indiana day at the the 90 sentence to be served. a state- in its verdict included State Farm and had the days to be served the effect that the sentence ment to erroneous and Jail it would have been prevail; had the other hand statute would on the Farm such days served at the State directed surplusage because have been redundant directive would supra, again 13-507, Burns’, Replacement, statute, prevail. would applied attempted here to be
The doctrine waiver anywise applicable case, supra, Hobbs is not on the reliance opinion, my not is, in appropriate. The doctrine waiver conflict State, direct often available to. the mute and rights stand constitutional every offense prove element of the require the State the motion to In case at bar doubt. beyond a reasonable 2-40B of judgment compliance with Rule was in way only in which the Court, proper, eminently and the judgment rendered as the defective could reached compliance verdict, court, after bias, personal represented merely with the but impose its illegal attempt of court to will prejudice and jury and the verdict of the over and above on statutory authority. contrary Evans v. E. 820. 50 N. directing opinion majority part
I concur in that to correct and rescind court gun directing therein. described confiscation of 2d 186. Reported 211 N. E.
Note. —