Adams v. State

*97 Dissenting Opinion

Peentice, J.

I dissent from the majority opinion and join wholeheartedly in the scholarly opinion of Judge DeBruler, which, in my judgment, has all of the weight of legal and social merit. I accept the opinion of the majority as a correct statement of case law upon the constitutional issues, when focused through the lens or stare decisis closed to its most narrow aperture. This Court, however, in recent years has not so limited its spectrum but has accepted the changing needs and demands of society as part of its responsibility. It is to be hoped that it will continue to do so. In view of the considerations so aptly presented by Judge DeBruler, I am compelled to draw our attention to recent pronouncements whereby we courageously struck down certain outmoded and ill considered doctrines that had theretofore chained us to the past by the shackles of repetition, as if the law were a series of tables to be learned and remembered by rote. In so doing, I am primarily concerned with our position with respect to Article I, § 18 of the Constitution of Indiana, in view of Rice v. The State (1855), 7 Ind. 332 , and Driskill v. The State, (1855), 7 Ind. 338 . Repeated, for convenience, Article I, § 18 is as follows:

“The penal code shall be founded on the principles of reformation, and not on vindictive justice.”

In 1968 we struck down the doctrine of charitable immunity. (Harris v. Young Women’s Christian Association of Terre Haute, 250 Ind. 491 , 237 N. E. 2d 242 .) The doctrine was first adopted in America by the Supreme Court of Massachusetts, erroneously thinking it to be the law of England, which in fact had repudiated it ten years earlier. We applied a qualified rule in 1924, (St. Vincent’s Hospital v. Stine, 195 Ind. 350 , 114 N. E. 537 ), followed through in 1963 (Richardson v. St. Mary’s Hospital, 135 Ind. App. 1 , 191 N. E. 2d 337 ), effectively emasculated it in 1964 (Ball Memorial Hospital v. Freeman, 245 Ind. 71 , 196 N. E. 2d 274 ) and laid it *98 to rest in 1968, while acknowledging that by stare decisis, charitable immunity was the law of Indiana. Noting in the Harris decision that in 1924 at least twenty states granted charitable immunity and only three did not, while in 1968 the great majority of states denied such immunity while only eight or ten, including Indiana, held to the doctrine, we said:

“We, therefore, believe that the duty of this Court is to repudiate the doctrine of charitable immunity and in view of the fact that it is a Court-made rule, it is hereby abolished by this Court without waiting for the intervention of the Legislative Branch of Government.” Harris v. Young Women’s Christian Association of Terre Haute, supra, at 497.

Certainly it was easier to take this action in view of so many of our sister states having previously done so, but it would have been easier yet to have doggedly held to the rule established and followed by our predecessors.

In 1969 (Troue v. Marker, 253 Ind. 284 , 252 N. E. 2d 800 ), with the intrepidity becoming a court of our statute, we applied the well reasoned dissent of Judge Sharp of our Appellate Court, notwithstanding the legal correctness of the majority opinion based upon strict application of stare decisis. We renounced our prior decisions denying a wife a cause of action for loss of consortion due to the injury of her husband. Calling the reasoning that gave rise to the rule “obviously specious” and declaring that “logic, reason and right are in favor of the position we are now taking. * * *.” We there declared:

“We find that there is no valid or consistent reason offered in the precedents urged by the appellee for a continuation of the doctrine that a wife cannot recover for loss of consortium of her husband. The change taking place in the authorities appears to us to be overwhelming.” 252 N. E. 2d at 806 .

In 1970 (O’Connor v. O’Cormor, 253 Ind. 295 , 253 N. E. 2d 250 ), we reconsidered our prior position upon the well estab *99 lished principle of domestic relations law, the doctrine of recrimination, “* * * In order to determine whether this Court can any longer sanction the use of that rule of law. . . .” 253 N. E. 2d at 255 . The doctrine of recrimination dates back, in this state, at least to 1833. (Chrislianberry v. Christianberry, 3 Blackford 202.) Our opinion in O’Connor v. O’ Connor, supra, is replete with citations espousing the doctrine as an absolute bar to divorce. Following a thorough analysis of the historical development, application and misapplication of the doctrine, we summed it up with a quote from Charles Dickens’ Oliver Twist: “ ‘If the law supposes that’ said Mr. Bumble, ‘the law is a ass, a idiot.’ ” 253 N. E. 2d at 258 . We wrote critically of a court that denied the divorce on the grounds of public morality as embodied in legal precedent, notwithstanding that the interests of the parties and society obviously would have been better served by awarding the decree; and we concluded by saying “* * * it would thus appear to this Court that the application of recrimination as an absolute bar to divorce is no longer defensible. * * 253 N. E. 2d at 259 . What, then, should we say of public immorality embodied in legal precedent?

Thusly have we, at the risk of momentary instability in our system, investigated the wisdom of precedents established many years ago and been constrained to look forward rather than backward. On those occasions, we exercised the authority that is clearly ours and fulfilled the responsibilities that we cannot deny. Our position in the case before us is the same. Whatever may have been the circumstances in 1855 motivating us to the decisions reached in Rice v. State, supra and Driskill v. State, supra, it is clear that we should not be governed by such mish-mash. In Rice v. State, supra, we said: “* * * There are cases beyond the hope of reformation—criminals whose necks have become so hardened ‘that they should suddenly be cut off, and that without remedy.’ ” 7 Ind. at 338. In other words, there are those that cannot be reformed. This may be true, but the framers of our constitution did not *100 concede the point, hence the proscription “* * * The penal code shall be founded on the principles of reformation, * * The remedy when we doubt the wisdom of the constitution is by way of amendment, not by blatant denial of its authority. In Driskill v. State, supra, we said: “* * * The punishment of death, for murder in the first degree is not, in our opinion, vindictive, but is even handed justice. * * 7 Ind. at 343. There are many things in law that are so because we say they are so, but there are limits. Death, as punishment for a crime, any crime, cannot be other than vindictive, whatever may be the meaning of “even handed justice.” There can be no basis for denying that the death penalty offends against Article I, § 18, except by reliance upon these cases as precedent, and they are, as was said in the Harris case, supra, built on a foundation that did not exist. The doctrine of stare decisis itself compels us to abandon it when it does not serve the objectives of sense and justice.

From the disclosures of Judge DeBruler’s opinion, it is clear to me that we have abandoned capital punishment in this state. All that remains to be done is to abolish it; and it is ludicrous and inhumane to any longer suspend those under sentence of death in a state of limbo, pending formal abolition. We should consider the realities of procuring legislative enactments. Few are directly affected by the question before us. Who is to sponsor their bill, guide it through the committees, and champion it on the floor? We are the guardians of the rights of the most lowly among us, and for us to require them to await the miracle of legislative action in their behalf is an unwarranted passing of our responsibility to the Governor’s office or to higher judicial authority and is a denial of constitutional rights. Whether it is a greater cruelty to entinguish a man’s life than to lock him in a cage and submit him to unspeakable indignities and torment is a question upon which reasonable minds might well differ. None, however, will deny that the former has a certain finality about it not encompassed in the latter. I believe that it is *101 because of this finality and the fallibility of man that § 18 was incorporated as a part of Article I of our state constitution; and until we are more learned in the principles of resurrection or at least reincarnation, I cannot accept a sentence of death as consistent with principles of reformation.

Note.—Reported in 271 N. E. 2d 425 .