DISSENTING OPINION. At the time the majority opinion was handed down my brother Gilkison was in dissent, and preparing an opinion stating his views of the law in the case. The matter to be decided was one of great importance for the school system of Indiana, and since *Page 699 I was unwilling to join in any opinion until I had had the benefit of the experience, research and reasoning of my brother Gilkison, I thought it necessary to reserve my decision and vote until I had had the opportunity to compare both opinions. I have now examined his dissenting opinion and feel compelled to take the position that the appellant was erroneously convicted.
This case with its most unusual facts brings to light the confused condition of many of our laws on certain school matters. There are no common law crimes in Indiana, and unless a penal statute provides an offense for the facts proved there can be no conviction. The material part of § 28-505, Burns' 1948 Replacement, (Acts 1921, ch. 132, § 5, p. 337), provides as follows:
"Unless otherwise provided herein, every child between the ages of seven (7) and sixteen (16) years shall attend public school or other school taught in the English language which is open to the inspection of local and state attendance and school officers; and such child shall attend such school each year during the entire time the public schools are in session in the school district in which such child resides. . . ." (Italics added.)
At the time this statute was enacted this court had defined a school district as follows: "A school district has no fixed boundaries, but is composed of the persons residing in thetownship who have been enumerated and attached thereto under § 5958 Burns' 1901, Acts 1895, p. 127, § 1." (Italics added.)Ireland v. State, ex rel. (1905), 165 Ind. 377, 380, 75 N.E. 872. It is apparent that the legislature used the term "attendance district" in § 28-501, Burns' 1948 Replacement, in a sense different than the term "school district" as used in § 28-505, Burns' 1948 Replacement, *Page 700 supra. When the legislature used the term "school district" it will be presumed, in the absence of anything in the statute to the contrary, that the term was subsequently used in the same sense as judicially defined.
The county school superintendent testified there were no schools in Green Township of Jay County where the appellant resided, but that "It has been provided for children in Green Township of school age to attend by areas the Pennville school from the northwest quarter — approximately quarter — and the Southwest quarter, the Governor I.P. Gray school, and the East half the Portland schools," and that the appellant's residence was "in that section from which the children are transported to the Penn Township public schools."
There was no evidence that there had been any consolidation of school districts as provided for by § 28-2808, Burns' 1948 Replacement, nor does the State's evidence show any establishment of any joint school. In fact it is impossible to tell upon what theory the State was basing its case.
It is not necessary to consider the sufficiency of the affidavit, but in any event the burden was upon the State to prove beyond a reasonable doubt that the appellant had violated § 28-505, Burns' 1948 Replacement, supra. There was no proof of any consolidation of the township schools, or of any school district within Green Township as provided by statute. I am unable to find any statute under the evidence in this case which made the Pennville school district, assuming there was one, the school district of the child of appellant. There were no public schools of Green Township in session at any time during the year. The public schools must have been in session in the school district in which the child resides before appellant *Page 701 could have been guilty. For these reasons I believe the verdict was contrary to law.
Although the facts in this appeal are very unusual it is to be hoped that this serious gap in the school statutes will be brought to the attention of the legislature which is now in session, so that the school attendance laws of the State may be made uniform as to all pupils wherever they reside, and under any possible facts involved in abandonment, consolidation, transfers or joint schools.
NOTE. — Reported in 83 N.E.2d 479. *Page 702