Lunning v. State

9 Ind. 309

• Court: Indiana Supreme Court
• Decided: June 8, 1857
• Status: Published

Opinion

Perkins, J.

Prosecution against Imnning for retailing to a minor. Motion to quash overruled. Conviction and fine. No exception was taken.

This Court has decided in numerous cases that the statute under which this prosecution was carried on had been repealed before the prosecution was commenced. And the question presented is — Will the failure of the defendant to except below, render valid a conviction for a crime after the statute creating the crime has been repealed? We answer unhesitatingly that it will not, for the following reasons :

1. The repeal of the statute creating the offense deprived the Court of jurisdiction over the act charged as an offense, and rendered it the duty of the Court mero motu, to dismiss the prosecution. Consent may confer jurisdiction over the person, but not over a subject-matter, at least, as a general rule.

2. The criminal code of practice expressly gives the motion in arrest of judgment. A motion in arrest would reach the objection under consideration. And it is well settled that an objection, good on a motion in arrest, is generally good on appeal or error.

3. Even in civil cases, the motion in arrest substantially exists under the new code. 2 B. S. p. 121, s. 372.

«kPer Curiam.

The judgment is reversed with costs. Cause remanded to be dismissed

(1).

W. S. Holman, for the state (2). P. L. Spooner and J. Ryman, for the appellees.

In two other eases against the appellant, the same order was this day made, for the same reasons.