On the other hand, Dyson might well have been able to establish some reasonable explanation why the reinstatement fee had not been paid, or had not been received by the Bureau of Motor Vehicles, or that the records of the Bureau were in error. In any event, the conclusion reached by the Third District in Jones v. State, supra, was a unanimous conclusion of the panel which included Judge Staton, the author of Baldock v. State (1978) 3d Dist., 177 Ind. App. 355, 379 N.E.2d 539. In Baldock, the majority opinion, joined by Judge Buchanan, correctly observed that the period of defendant's suspension had expired and that although Baldock "was no longer technically within the suspension period, neither was he legally licensed."
Black's Law Dictionary, 1446 (5th ed.). Indiana has defined "wrongful" as "infringement of some right," Fidelity and Casualty Co. v. Blount Plow Works, 78 Ind. App. 529, 136 N.E. 559, 561 (1922), and "wrong" as a "violation of the municipal law, the law of civil conduct," Western Union Tel. Co. v. Ferguson, 157 Ind. 64, 60 N.E. 674, 676 (1901). Furthermore, under Indiana law, if an act is wrongful and is done intentionally, without just cause or excuse, that act is malicious. Springer v. State, 224 Ind. 241, 66 N.E.2d 529 (1946); Baldock v. State, 177 Ind. App. 355, 379 N.E.2d 539, 540 (1978). Thus, the state court's ultimate finding concerning whether a battery occurred necessarily encompassed both the issue of willfulness (an intentional act, as battery is an intentional tort) and the issue of maliciousness (a wrongful act, an act done in conscious disregard of one's duties) as those terms are defined by federal law under § 523(a)(6).
Even so, the court remains unconvinced that the defendant may not be liable for "malicious" acts within the purview of I.C. 14-2-6-3. "Malice" has been equated with an "evil design," Fryback v. State, 272 Ind. 660, 400 N.E.2d 1128, 31 (1980); also, Drollinger v. State, 274 Ind. 5, 408 N.E.2d 1228-43 (1980), and, malicious acts have been equated to acts which were wrongful and done without just cause or excuse, e.g., Baldock v. State, 177 Ind. App. 355, 379 N.E.2d 539 (1978), and/or acts "done within a condition that shows a heart regardless of social duty and bent or mischief." Fox v. State, 179 Ind. App. 267, 384 N.E.2d 1159, 67 n. 16 (Ind.App. 1979), see also, Brown v. State, 403 N.E.2d 901 (Ind.App. 1980).
There is a clear conflict of opinion in the Court of Appeals regarding this issue. Compare Martin, Jones, and Dyson, supra, with Baldock v. State (1978), 177 Ind. App. 355, 379 N.E.2d 539, and the present memorandum decision (affirming conviction even though arrest came after suspension period elapsed). We believe that the better reasoning is as stated in State v. Dyson and that Frink should not have been convicted of Driving While License Suspended. The State could have properly charged him with operating without a valid operator's license in violation of Ind. Code § 9-1-4-26, but not driving while license suspended, because the suspension period had passed.
It is error for a trial court to modify sentences when neither the defendant nor his attorney are present in court. Baldock v. State, (1978) Ind. App., 379 N.E.2d 539, trans. denied.
He cites Holland v. State, (1976) 265 Ind. 216, 352 N.E.2d 752, which holds that a sentence cannot commence in futuro. Baldock v. State, (1978) Ind. App., 379 N.E.2d 539, holds that a consecutive sentence cannot be given unless provided by statute. Consecutive sentences are permitted in Ind. Code 35-50-1-2 (Supp.
Under prior law, the fact that a defendant intended to hit someone other than the actual victim did not prevent him from being found guilty of assault and battery. Baldock v. State, (1978) Ind. App., 379 N.E.2d 539. That the conduct was "knowingly" and "intentionally" performed may be inferred from the voluntary commission of the prohibited act as well as from the surrounding circumstances. Perry v. State, (1980) Ind. App., 401 N.E.2d 792; Moore v. State, (1979) Ind. App., 395 N.E.2d 1280.
We must hold differently, however, as to Defendant's issue number five. A trial court has no authority to order the previously suspended sentences to run consecutive to any other sentence. Consecutive sentences must be authorized by statute. Williams v. State (1977), Ind., 366 N.E.2d 642; Baldock v. State (1978), Ind. App., 379 N.E.2d 539. At the time of Young's convictions for Unlawful Use of a Credit Card and Uttering a Forged Instrument there was no statute allowing previously suspended sentences, imposed as the result of a probation violation, to run consecutive to a sentence imposed for an offense committed during the probation and prior to revocation. The existing law, which would require consecutive sentences, I.C. 35-50-1-2 (Burns Code Ed., Repl. 1979), is not applicable. Without consideration of an ex post facto question, the savings clause of the new penal code of which I.C. 35-50-1-2 is a part provides:
Barber v. State, (1927) 199 Ind. 146, 149, 155 N.E. 819, 820. See also Baldock v. State, (1978) Ind. App., 379 N.E.2d 539. The second common thread running through the cases and materials relates to the operation of the defense.
Further, Mulry admitted that he and Trusley had just left the Carmel theater location. Trusley's deliberate conduct was sufficient to support a finding of wrongful, intentional conduct required of Malicious Trespass. Barber v. State, (1927) 199 Ind. 146, 149, 155 N.E. 819, 820; Baldock v. State, (1978) Ind. App., 379 N.E.2d 539, 540. We therefore affirm Trusley's conviction and reverse Mulry's conviction, remanding it for a new trial.