Smith v. State

211 N.E.2d 186, 247 Ind. 126, 1965 Ind. LEXIS 320

• Court: Indiana Supreme Court
• Decided: November 4, 1965
• Docket: 30,791
• Status: Published

Opinions

Arterburn, J.

The appellant was charged in four counts with:

1. Assault.

2. Drawing a dangerous weapon.

3. Assault with intent to murder, and

4. Resisting arrest hy a sheriff by the use of a loaded shotgun.

He was found not guilty on all counts except the fourth (resisting arrest), under which he was found guilty of “simple assault”. The jury’s verdict was as follows:

“We, the Jury, find the defendant guilty of simple Assault as contained in Count 4 of the affidavit, and that he be fined in the sum of $100.00 (not exceeding $500.00) and that he be imprisoned for a period of 90 days (not exceeding six months, however, the assessment of any time is optional with you).”

Without making any objection at the time of the return of the verdict as to any alleged defect therein, the appellant thereafter filed a motion to modify the judgment on the ground that the jury should have fixed the place of imprisonment either in the county jail or in the Indiana State Farm. The judgment of the court following the verdict provided for the imprisonment at the Indiana State Farm.

Burns’ Ind. Stat. Anno. § 10-402 (1956 Repl.) fixing the penalty for an assault, states that upon conviction such person

“. . . shall be fined in any sum not exceeding five hundred dollars ($500.00), to which may be added imprisonment in the county jail or in the Indiana State Farm not exceeding six (6) months.”

Burns’ Ind. Stat. Anno. § 9-1819 (1956 Repl.) provides in part:

“When the defendant is found guilty the jury, except in cases provided for, in the next three (two) sections, must state, in the verdict, the amount of fine and punishment to be inflicted; . . .”

This section is applicable to charges and convictions under the assault statute. Appellant argues that under the above section it was the duty of the jury and not the court to fix the imprisonment in the Indiana State Farm or the county jail. In our opinion, appellant’s contention that the verdict fixed by the jury was defective is clearly erroneous. The place of confinement is fixed by the statute and the court, in entering the judgment, had no discretion, but was compelled under the statute, to fix the imprisonment at the Indiana State Farm.

Burns’ Ind. Stat. Anno. § 13-507 (1956 Repl.) in part provides:

“. . . it shall be the duty of all judges of circuit, superior, criminal and city courts to commit thereto so far as the capacity of the institution will permit, all male persons who are above the age of commitment to the Indiana Boys’ School, who shall have been convicted of the violation of any criminal law of this State now in force or hereafter enacted, or of any ordinance now in force or hereafter enacted, the punishment for which consists or shall consist of imprisonment in any county jail or workhouse. . . . Provided, however, That when the imprisonment adjudged is sixty (60) days or less, or where the fine and costs assessed by any court, where not paid or replevied, would not require the defendant to serve more than sixty (60) days in any county jail or workhouse, the court trying such case shall have discretion to commit such defendant either to the state farm or to the jail or workhouse of the proper county; . . (Our italics)

We have held in Banks v. State (1919), 188 Ind. 353, 355, 123 N. E. 691, 692, that

“. . . where the term of imprisonment was ninety.days, it was the absolute duty of the court to commit the defendant to the state farm.”

To the same effect is Graves v. State (1921), 191 Ind. 197, 132 N. E. 369, where the jury’s verdict provided imprisonment for 90 days “in the county jail.” The law is settled that the place of imprisonment of an individual convicted of a violation of a provision of the criminal law is determined by the trial judge and not the jury, pursuant to- the mandatory or discretionary provisions of the statute. When the imprisonment is to be more than 60 days and the individual is above the commitment age of the Indiana Boys’ School and the statute does not provide for imprisonment in a state prison or reformatory, the trial judge must commit the convicted individual to the Indiana State Farm.

The appellant, however, states that Burns’ Ind. Stat. Anno. § 9-1819 (1956 Repl.) [Acts 1927, ch. 200, § 1, p. 574], which provides that the jury shall fix the punishment in assault cases, repeals Burns’ Ind. Stat. Anno. § 13-507 (1956 Repl.) [Acts 1913, ch. 236, § 8, p. 660 as amended by Acts 1919, ch. 33, § 1, ,p. 81 and Acts 1931, ch. 77 § 1, p. 224], which provides for confinement in the state farm where the imprisonment fixed is more than 60 days.

Upon an examination of these two statutes, we find no conflict sufficient to create any implied repeal of the old statute. The 1927 Act did not specifically repeal any provision of the 1913 Act. The court cannot indulge in presumptions of repeal by implication unless there is an irreconcilable conflict in the two statutes, and we find no such inconsistency exists in this case.

Furthermore, the Act of 1913, supra, was amended in 1931 by restoring the 60 day period which in 1919 had been fixed at 30 days. If there were any repeal by implication, the amendment of 1931 would prevail over the Act of 1927. Shewmaker v. State (1956), 236 Ind. 49, 138 N. E. 2d 290.

,We further point out in this case that in reality the judgment was in proper form. It was the verdict which the appellant attacks in this case as being defective. If the appellant felt the verdict of the jury was not in proper form, he may not stand idly by and make no objections thereto and permit the jury to be discharged, and then, after the jury has separated finally and it is too late to correct or amend the verdict, attack the verdict as defective. One may not fail to make objections during the trial at the proper time when the alleged error is revealed, and later, after it is too late to remedy such alleged error, predicate error thereon. Such conduct constitutes a waiver, since judicial proceedings must be conducted in an orderly fashion such that objectionable errors may be remedied promptly before it is too late. A defective verdict may not be attacked for the first time through a motion to correct a judgment, which is correct on its face. Lane v. Hobbs (1965), 246 Ind. 640, 208 N. E. 2d 182.

The trial court in this case, upon rendering judgment, directed the sheriff to confiscate the shotgun used by the appellant and destroy the same. It is pointed out in the briefs that the only statute under which such procedure is authorized is Burns’ Ind. Stat. Anno. § 10-4706 (1965 Supp.), which provides:

“In case the arrested person be found guilty of violating this statute by wearing or carrying such concealed weapon there shall be entered as part of the judgment of conviction of said crime an order to the sheriff directing the destruction of such weapon by the justice, mayor, city judge, municipal court judge, magistrate, or judge of the criminal or circuit court before whom or in whose court such cause is pending, and the sheriff shall execute the same in the manner and at the time fixed by such order.”

The appellant was not charged under a statute for carrying concealed weapons, and no other law is pointed out to us under which the weapon could be confiscated, as in this case. We therefore find that the court erroneously made an order of confiscation, and it is directed to rescind such order and that part of the judgment directing the confiscation of the gun described.

The judgment of the trial court is otherwise affirmed.

Myers, and Landis, JJ., concur. Jackson, C. J., concurs in result with separate opinion to follow. Aehor, J., not participating.