plain error in Indiana

2006In United States v. Cotton, 535 U.S. 625 , 122 S.Ct. 1781 , 152 L.Ed.2d 860 (2002), for example, the Supreme Court applied the plain error test to a case pending on appeal when the new rule in Apprendi was announced.

2006In United States v. Cotton, 535 U.S. 625 , 122 S.Ct. 1781 , 152 L.Ed.2d 860 (2002), for example, the Supreme Court applied the plain error test to a case pending on appeal when the new rule in Apprendi was announced.

2005Furthermore, while waiver generally precludes appellate review of an issue, in federal practice forfeiture permits appellate review, but limits such review to "plain error." Id.; United States v. Levy, 391 F.3d 1327, 1341-43 (11th Cir. 2004)(Tjoflat, J., dissenting). [14] Cf. Pirnat v. State 600 N.E.2d 1342 (Ind. 1992). [15] Although the rule announced in Booth and Gathers was eventually overruled by Payne v. Tennessee, 501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 (1991), this does not impact our retroactivity analysis. [16] See, e.g., United States v. Rogers, 118 F.3d 466, 470-71 (6th Cir.

2005Furthermore, while waiver generally precludes appellate review of an issue, in federal practice forfeiture permits appellate review, but limits such review to "plain error." Id.; United States v. Levy, 391 F.3d 1327, 1341-43 (11th Cir. 2004)(Tjoflat, J., dissenting). [14] Cf. Pirnat v. State 600 N.E.2d 1342 (Ind. 1992). [15] Although the rule announced in Booth and Gathers was eventually overruled by Payne v. Tennessee, 501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 (1991), this does not impact our retroactivity analysis. [16] See, e.g., United States v. Rogers, 118 F.3d 466, 470-71 (6th Cir.

2005Furthermore, while waiver generally precludes appellate review of an issue, in federal practice forfeiture permits appellate review, but limits such review to "plain error." Id.; United States v. Levy, 391 F.3d 1327, 1341-43 (11th Cir. 2004)(Tjoflat, J., dissenting). [14] Cf. Pirnat v. State 600 N.E.2d 1342 (Ind. 1992). [15] Although the rule announced in Booth and Gathers was eventually overruled by Payne v. Tennessee, 501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 (1991), this does not impact our retroactivity analysis. [16] See, e.g., United States v. Rogers, 118 F.3d 466, 470-71 (6th Cir.

1976Kleinrichert v. State (1973), 260 Ind. 537 , 297 N.E.2d 822 ; Goode v. State (1974), 160 Ind. App. 360 , 312 N.E.2d 109 .

1976Kleinrichert v. State (1973), 260 Ind. 537 , 297 N.E.2d 822 ; Goode v. State (1974), 160 Ind. App. 360 , 312 N.E.2d 109 .

1976Kleinrichert v. State (1973), 260 Ind. 537 , 297 N.E.2d 822 ; Goode v. State (1974), 160 Ind. App. 360 , 312 N.E.2d 109 .

1976Kleinrichert v. State (1973), 260 Ind. 537 , 297 N.E.2d 822 ; Goode v. State (1974), 160 Ind. App. 360 , 312 N.E.2d 109 .

1974Indeed, Kleinrichert *410 indicates, as do the other cases dealing with this subject, that the issue deemed to be fundamental error was presented to the court in the appellant's brief: "Normally, this Court will not consider an issue which is first raised on appeal, but a court of review cannot ignore a fundamental error which is apparent on the face of the record, such as an incorrect sentence." (Emphasis supplied.) 297 N.E.2d 826 .

1974Indeed, Kleinriehert indicates, as do the other cases dealing with this subject, that the issue deemed to be fundamental error was presented to the court in the appellant’s brief: “Normally, this Court will not consider an issue which is first raised on appeal, but a court of review cannot ignore a fundamental error which is apparent on the face of the record, such as an incorrect sentence.” (Emphasis supplied.) 297 N.E.2d 826 .

1954This court, in Fairchild, Prosecuting Atty., etc. v. Schanke et al. (1953), 232 Ind. 480, 487 , 113 N. E. 2d 159 , reaffirmed the rule pertaining to legislative classification as limited by Art. 1, §23, supra, as stated in Bedford Quarries Co. v. Bough (1907), 168 Ind. 671, 674 , supra, as follows: “The legislature may make a classification for legislative purposes, but it must have some reasonable basis upon which to stand.

1954This court, in Fairchild, Prosecuting Atty., etc. v. Schanke et al. (1953), 232 Ind. 480, 487 , 113 N. E. 2d 159 , reaffirmed the rule pertaining to legislative classification as limited by Art. 1, §23, supra, as stated in Bedford Quarries Co. v. Bough (1907), 168 Ind. 671, 674 , supra, as follows: “The legislature may make a classification for legislative purposes, but it must have some reasonable basis upon which to stand.

1954This court, in Fairchild, Prosecuting Atty., etc. v. Schanke et al. (1953), 232 Ind. 480, 487 , 113 N. E. 2d 159 , reaffirmed the rule pertaining to legislative classification as limited by Art. 1, §23, supra, as stated in Bedford Quarries Co. v. Bough (1907), 168 Ind. 671, 674 , supra, as follows: “The legislature may make a classification for legislative purposes, but it must have some reasonable basis upon which to stand.

1954This court, in Fairchild, Prosecuting Atty., etc. v. Schanke et al. (1953), 232 Ind. 480, 487 , 113 N.E.2d 159 , reaffirmed the rule pertaining to legislative classification as limited by Art. 1, ž 23, supra, as stated in Bedford Quarries Co. v. Bough (1907), 168 Ind. 671, 674 , supra, as follows: "The legislature may make a classification for legislative purposes, but it must have some reasonable basis upon which to stand.

1953So far as the evidence of the instant case is concerned, we believe that the rule was well-settled in the case of Fouty v. Fouty and Another (1870), 34 Ind. 433 , for in that case the court said at pages 434 and 435, the following: “A voluntary conveyance of land without any consideration, either good or valuable, is valid and binding between the parties and their privies; nor can parol evidence be given, by or between them, that such deed of conveyance, absolute on its face, was made in trust to the grantee, and that he was to reconvey at a future time on the happening of any contingency.” (S

1953“But it is a well settled doctrine that parol evidence can not change an absolute deed into one of trust, in the absence of fraud, accident or mistake; such is the doctrine held by this court.” In the case of Mescall v. Tully et al. (1883), 91 Ind. 96 , Judge Elliott said: “It would be a plain violation of the letter and the spirit of the statute to permit a deed absolute *137 in its terms to be turned into the conveyance of a trust by a verbal agreement.” The appellants further urge upon this court that there is a lack of consideration in the transfer of the real estate to the appellees.

1952This rule, said Chief Justice Marshall, in United States v. Wiltberger (1820), 5 Wheat. *76, *95, 5 L.Ed. 37 `is founded on the tenderness of the law for the rights of individuals; and on *659 the plain principle, that the power of punishment is vested in the legislative, not in the judicial department.

1952It is the legislature, not the court, which is to define a crime, and ordain its punishment.” See State v. Lowry (1905), and Lewis v. State (1906), 166 Ind. 372 , 77 N. E. 728 .

1952It is the legislature, not the court, which is to define a crime, and ordain its punishment.” See State v. Lowry (1905), and Lewis v. State (1906), 166 Ind. 372 , 77 N. E. 728 .

1942In the case of Powell v. Young (1928), 151 Va. 985, 996 , 144 S. E. 624 , wherein a rule of court was involved requiring that objections to instructions state with reasonable certainty the ground of such objection, the objection was made that the instruction did not correctly state the law, was misleading and inappropriate." In passing upon the question, that court used the following language: “To say that an instruction is misleading and inappropriate upon the evidence, and does not correctly state the law applicable thereto, is too general to be of any assistance to the trial court and is a

1942In the case of Powell v. Young (1928), 151 Va. 985, 996 , 144 S. E. 624 , wherein a rule of court was involved requiring that objections to instructions state with reasonable certainty the ground of such objection, the objection was made that the instruction did not correctly state the law, was misleading and inappropriate." In passing upon the question, that court used the following language: “To say that an instruction is misleading and inappropriate upon the evidence, and does not correctly state the law applicable thereto, is too general to be of any assistance to the trial court and is a

1905Town of Sullivan v. Phillips, supra. As stated in First Nat.

1902Ludwig v. Cory, 158 Ind. 582 ; White v. Ferguson, 29 Ind. App. 144 .

1902Ludwig v. Cory, 158 Ind. 582 ; White v. Ferguson, 29 Ind. App. 144 .

1889Wharton Law of Neg., section 232; Malone v. Hathaway, 64 N. Y. 5 ( 21 Am.

1883This court in a recent case said: “ The Constitution says that ‘the style of every law shall be, Be it enacted/ etc., and •doubtless this clause should precede everything which is made and declared to be law.” Barton v. McWhinney, 85 Ind. 481, 487 .

1871This whole doctrine proceeds upon a plain principle of justice, for every person so acting for another, by a natural, if not a necessary, implication, holds himself out as having competent authority to do the act; and he thereby draws the other party into a reciprocal engagement.” Story on Agency, § 264; Long v. Colburn, 11 Mass., 97 ; Bullou v. Talbott, 16 Mass., 461 ; Feeter v. Heath, 11 Wendell, 477 ; Smout v. Ilbery, 10 Mess. & Welsb., 1, 9, 10.

1871This whole doctrine proceeds upon a plain principle of justice, for every person so acting for another, by a natural, if not a necessary, implication, holds himself out as having competent authority to do the act; and he thereby draws the other party into a reciprocal engagement.” Story on Agency, § 264; Long v. Colburn, 11 Mass., 97 ; Bullou v. Talbott, 16 Mass., 461 ; Feeter v. Heath, 11 Wendell, 477 ; Smout v. Ilbery, 10 Mess. & Welsb., 1, 9, 10.

1871And a public agent ,who exceeds his authority, or who negligently uses or abuses his authority, is liable to the party injured thereby. “ And in cases of this sort,” says Mr. Story, “ it is not sufficient for public agents to show that they acted bona fide, and to the best of their skill and judgment, for they are bound also to conduct themselves with reasonable skill and diligence in the execution of their trust.” Story on Agency, §§ 319, 320; Bullou v. Talbott, supra; McHenry v. Duffield, 7 Bl’kf., 41; Potts v. Henderson, 2 Ind., 327; Hill v. Smith, 2 Bing., 526.

1871And a public agent ,who exceeds his authority, or who negligently uses or abuses his authority, is liable to the party injured thereby. “ And in cases of this sort,” says Mr. Story, “ it is not sufficient for public agents to show that they acted bona fide, and to the best of their skill and judgment, for they are bound also to conduct themselves with reasonable skill and diligence in the execution of their trust.” Story on Agency, §§ 319, 320; Bullou v. Talbott, supra; McHenry v. Duffield, 7 Bl’kf., 41; Potts v. Henderson, 2 Ind., 327; Hill v. Smith, 2 Bing., 526.