Burk v. State , 185 Ind. 47 ( 1916 )

Erwin, J.

— Appellant was, on May 4, 1915, convicted in a trial by jury of buglarizing a store building in the city of Indianapolis. The trial court in passing sentence upon appellant fixed his punishment at imprisonment “in the Indiana Reformatory for a term of not less than ten years nor more than twenty years,” together with disfranchisement for ten years and the payment of the costs of the prosecution. The indictment charged the burglary of a store building. The verdict of the jury found appellant guilty of - burglary “as charged in the indictment,” and found his age to be twenty-three years. After the judgment was rendered by the court fixing imprisonment at from ten to twenty years, appellant moved to modify the judgment by making it from two to fourteen years.

The legislature of Indiana at its 1915 session changed the penalty for the burglary of a store building and fixed it at from two to fourteen years. Acts 1915 p. 619. This act went into effect on April 20, 1915. This court in the ease of Lefforge v. State (1891), 129 Ind. 551, 29 N. E. 34, passed upon the very question involved in this case. In that case the jury returned a verdict' fixing the penalty at eight years. The act of March 7,1891 (Acts 1891 p. 347) was in force at the time the jury returned its verdict. This act amended the former law, which fixed the maximum penalty at eight years for the crime charged in that case, and fixed the maximum penalty at five years. This court held that the verdict was wholly unauthorized, and that the law in force at the time of the trial controlled the penalty, and ordered a new trial. This authority is relied upon by appellant to sustain his position that the court should have modified its judgment and made it according to the act of 1915. The Attorney-General insists that §248 Burns 1914, §248 R. S. 1881, keeps in effect the former law governing this offense, and that for the purpose of this prosecution the old law, fixing the penalty for burglary at from ten to twenty years, is still in force.

Section 248, supra, reads as follows: “Whenever an act is repealed which repealed a former act, such act shall not thereby be revived, unless it shall be so expressly provided. And the repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture dr liability incurred under such statute, unless the repealing act shall so expressly provide; and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.” While it is true that Lefforge v. State, supra, seems to be in conflict with said section, as is also State v. Mason (1886), 108 Ind. 48, 8 N E. 716, yet in neither of said cases is there any reference to §248, supra, which was in effect at the date said decisions were rendered, and was evidently overlooked. The ease of State v. Mason, supra, was discredited by this court in State v. Wells (1887), 112 Ind. 237, 13 N. E. 722, in an opinion by Mitchell, J., holding that §248, supra, saves the statute for the prosecution of a felony committed under a former act. The same doctrine is declared in State v. Hardman (1896), 16 Ind. App. 357, 45 N. E. 345; Heath v. State (1909), 173 Ind. 296, 298, 90 N. E. 310, 21 Ann. Cas. 1056; United States v. Reisinger (1888), 128 U. S. 398, 9 Sup. Ct. 99, 32 L. Ed. 480; Lefforge v. State, supra, overruled.

We are of the opinion that the court did not err m passing judgment fixing the penalty under the former law.

Judgment affirmed.