I agree with the holding that the "Good Time" statute of 1883 was repealed by the Indeterminate Sentence statute (Acts 1897, p. 219) and since the trial court's *Page 560 judgment rested upon the assumption that the "Good Time" statute was still in force the judgment should be reversed.
I dissent from that portion of the majority opinion which holds that the statement "any determinate period, not less than ten (10) years nor more than twenty-five (25) years" (Acts 1921, ch. 32, p. 91, § 2548, Burns Ann. Ind. St. 1926) should be construed to authorize a sentence for an indeterminate period, "not less than ten (10) years nor more than twenty-five (25) years."
The Act of 1905 was intended to provide as follows respecting imprisonment of persons convicted of felonies:
(1) All persons convicted of felonies other than treason or murder should be sentenced for an indeterminate period of not less than the minimum nor more than the maximum number of years prescribed by statute for the particular offense.
(2) All convicted persons whose ages should be more than sixteen years and less than thirty should be confined in the Indiana State Reformatory.
(3) All whose ages should be thirty or above should be confined in the Indiana State Prison.
(4) The actual number of years of imprisonment should be determined by the proper parole officers.
In 1921 the General Assembly defined the crime of automobile banditry and provided that any person convicted of that offense should be imprisoned in the state prison "for any determinate period, not less than ten (10) years nor more than twenty-five (25) years."
Since the aforesaid provision of the Act of 1921 is definite and unequivocal we should accept its manifest meaning no matter how much it modifies the provisions of the earlier act of 1905. I know of no rule of statutory construction which permits the modification of a clear provision of a later statute because it conflicts with an earlier statute. That situation necessitates a repeal *Page 561 by implication. It is true that the law does not favor repeal by implication; but out of necessity it does recognize it. In the opinion of the writer these conflicting provisions present a clear case of repeal by implication.
That the General Assembly deliberately used the words "any determinate period" in the automobile banditry statute is indicated by the fact that during the same session other statutes were enacted which defined certain offenses and fixed indeterminate terms of imprisonment. Also, in the 1927 session of the General Assembly the offense of automobile banditry was redefined and the term of imprisonment was made indeterminate; and in the 1929 session the indeterminate term was changed to "any determinate period." But the place of imprisonment was designated as the "state prison" in both the 1927 and 1929 acts.
It is common knowledge that during the last fifteen years there has been an alarming increase in criminal acts of the general character of the offense defined as automobile banditry. Apparently the General Assembly of 1921 felt that automobile banditry should be dealt with more severely than other felonies and intended to prevent the sentencing of persons guilty of this offense for an indeterminate period; and also clearly intended to require all persons guilty of automobile banditry to serve their terms of imprisonment in the state prison, regardless of age. We may not agree with the policy of the legislation but clearly the General Assembly had the power to modify the Act of 1905 or to repeal it entirely. It chose to modify the policy of sentencing for an indeterminate period, leaving the determination of the actual length of the term of imprisonment to the discretion of parole officials, and to substitute therefor a policy of fixing a definite period of imprisonment within fixed maximum and minimum limits, the actual term to be fixed in the sentence imposed by the trial court. *Page 562 Also the earlier policy of considering the age of the convicted person in determining the place of imprisonment was abandoned.
I think the trial court was correct in holding that under the Automobile Banditry act of 1921 the appellee should have been sentenced for a definite term of years, the definite term to be not less than ten (10) years nor more than twenty-five (25) years.