The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1898-03-09
THE DISSENTING OPINION.
1t Holds that Judicial Discretion Is
Denied.


The dissenting opinion Of Justice Jordan
holds that the law is unconstitutional in
that it requires the court, without exer-
cising any judicial discretion whatever, to
impose an indeterminate sentence on a per-
son convicted of felony. The Constitution
denies the right of any one of the three
departments of government to exercise the
functions Of another department.
ANY attempt to deprive one department
of its rights and powers under the Consti-
tuition must be carefully watched and
guarded" said the decision, land no en-
croachment of one upon the powers Of the
other can be permitted; otherwise, the con-
stitutional rights OF the citizens may be
frittered away, and the maintenance of
republican form of government be i'm
paired"
Continuing the opinion says:
mot only is the trial, conviction and SEN
fencing Of person convicted of the COM
mission of a crime a judicial duty, but
also, in my opinion, is the right to assess
the punishment and thereby nix the term
of Imprisonment provided, within the limits
of the statute, judicial function, of which
the court wherein the accused is tried can
not be deprived by the Legislature.
RIGHT TO APPLY THE LAW.
1.-THE provisions of the various sections
of our penal code, relating to crimes classed
as felonies by the law are expressly recog-
nized by the statute in question as
still existing; especially is this true in re-
gard to the limits of imprisonment. Ger
tainly the right to apply the law as it then
exists is the peculiar province of the court
or jury in the trial of a criminal cause;
consequently the right to determine and de-
eide as to the extent to which a convicted
person shall be punished by imprisonment
under and within the limits of an existing
law, cannot be Wrested from the court and
jury and lodged elsewhere. The provisions
of the statute under consideration wholly
rob the court of all judicial discretion in
regard to the term of Imprisonment, and
in imperative language require 1t to SEN
tenoe the prisoner to the custody of the
board of managers OF the ReformatOry for
an indefinite term.
while the constitutional validity of a
statute which simply lodges in the court,
where a person accused of crime is tried,
the power of assessing the punishment,
instead of leaving it with the jury trying
the case, may be conceded, but when law
goes beyond this and deprives both the jury
and the court of this power, as does the
one in dispute, certainly 1T must be held
to infringe upon the constitutional rights
of the accused, which he has to demand, in
the event of his conviction, that his pun
ishment be judicially determined under the
existing law, which he has been convicted
of violating and which prescribed the PEN
alties for it's violation. The trial cannot be
said to have ended until his punishment is
determined and adjudged by the court"
JUSTICE HOWARD'S OPINION.
Justice Howard, in dissenting from the
principal opinion, took much the same
ground as that taken by Justice Jordan. He
says:
LAS interpreted by the court, the act
seems to me TO make a mere figurehead
of the trial judge, and transfer the consti-
tutional discretion and judgment of the
judiciary to officers of the administrative
department OF the government; Furnishing
also the eulprit not according to the de-
gree Of the offense of which he is con-
victed but according to his conduct in the
Reformatofy and the probability OF his re-
ceiving remunerative employment after he
gets out"
The Judge also held that the law was
open to a construction in harmony with
the Constitution. Said he
The act provides for confinement in the
Reformatory for a term not less than the
minimum time prescribed by the statutes
of this State as a punishment for such Of
Tense, and not more than the maximum
time prescribed by such statutes therefor.
Is it not a reasonable interpret alton or
these words to say mat their meaning -,
that the court, after hearing and consfd-
ering all the facts and circumstances,
should fix q definite term of punishment,
somewhere between the minimum and max
imum times provided by the statuteS? That
would be quite in harmony with the prac-
tice under the law as it was formerly
understood. The statute in relation u burg
lary prescribes as a part of the punishment
that the convicted person shall be impris-
oned in the state prison not more than four
teen years nor less than two years. NO
one ever knew court, under this statute,
to say to a defendant:
81 You have been convicted Of burglary
and you Will be imprisoned therefor not
more than fourteen years nor less. than
two years 1t was, on the contrary. Well
understood that while the statute made the
punishment indeterminate, between certain
limits, the court, in its sentence, must name
a determinate term of Imprisonment with
in such limits, so that in every case, as
required by the Constitution, the penalty
shall be proportioned to the nature of the
offense' So interpreted, the act of 1897
would be in harmony with the Constitu-
ton. and would also serve to accomplish
all the beneflcent designs intended by the
TaCislatilre' -