Allen v. Commonwealth
| Decision Date | 11 March 1938 |
| Citation | 272 Ky. 533 |
| Parties | Allen v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
2. Criminal Law. — The Habitual Criminal Act is not unconstitutional on ground that it punishes twice for the same offense (Ky. Stats., sec. 1130).
3. Criminal Law. — The testimony of deputy clerk of another circuit court within the state, who stated that he had records of the court in his custody, and who produced records, and read order showing that defendant was tried for robbery, convicted, his punishment fixed, and sentenced, was admissible to show prior conviction of defendant charged under the Habitual Criminal Act (Ky. Stats., sec. 1130).
4. Indictment and Information. — To convict defendant and enhance his punishment under the Habitual Criminal Act to life imprisonment, commonwealth was required to charge in its indictment and establish by its proof all facts required by Habitual Criminal Act (Ky. Stats., sec. 1130).
5. Criminal Law. — The courts of Kentucky do not take judicial notice of the laws of other states or of the jurisdiction of their courts, but will take judicial notice of the laws of Kentucky and the jurisdiction of its courts.
6. Criminal Law. — Where it was alleged and proven by records and testimony of the deputy clerk of another circuit court within the state that defendant had been previously convicted of robbery, the portion of the Habitual Criminal Act increasing the punishment for a second conviction was set in operation, since the courts of Kentucky are charged with judicial notice of the laws of Kentucky and the jurisdiction of its courts (Ky. Stats., sec. 1130).
7. Criminal Law; Indictment and Information. — The allegation and proof that defendant had been convicted of housebreaking in another state and sentenced to three years' imprisonment were insufficient to increase defendant's imprisonment under the Habitual Criminal Act, in absence of allegation and proof that housebreaking was a felony in that state and that court convicting him had jurisdiction, since Kentucky courts do not take judicial notice of the laws of other states, or the jurisdiction of their courts (Ky. Stats., sec. 1130; Constitution of United States, art. 4, sec. 1).
8. Criminal Law. — Where commonwealth sought to increase defendant's punishment under the Habitual Criminal Act by showing a previous conviction in another state for housebreaking, it could have done so in accordance with provisions of statute establishing the manner of proving the common law of other states and foreign laws (Ky. Stats., secs. 1130, 1635, 1640 et seq.).
9. Criminal Law. — The certificate of the judge of a foreign state that the clerk's certificate that defendant had been convicted of housebreaking in that state was in due form was indispensable to certificate's admission to increase defendant's punishment under the Habitual Criminal Act (Ky. Stats., secs. 1130, 1635).
10. Criminal Law. — In prosecution for housebreaking, wherein the commonwealth sought to increase defendant's punishment under the Habitual Criminal Act by showing prior convictions, commonwealth was not required to show facts involved in the former convictions (Ky. Stats., sec. 1130).
11. Criminal Law. — In prosecution for housebreaking, wherein the commonwealth sought to increase defendant's punishment under the Habitual Criminal Act by showing prior convictions, commonwealth was not required to show that prior convictions had never been reversed, vacated, or set aside, since burden was on defendant (Ky. Stats., sec. 1130).
12. Criminal Law. — In prosecution for housebreaking, wherein the commonwealth sought to increase defendant's punishment under the Habitual Criminal Act by showing prior convictions, commonwealth had burden of showing that defendant not only had the same name but was the same person previously convicted (Ky. Stats., sec. 1130).
13. Criminal Law. — In prosecution for housebreaking, wherein the commonwealth sought to increase defendant's punishment under the Habitual Criminal Act by showing prior convictions, commonwealth properly showed by testimony of witnesses who attended former trials that defendant was the same person previously convicted (Ky. Stats., sec. 1130).
14. Criminal Law. — A defendant who pleaded guilty and never altered or offered to change that plea could not complain on appeal of former jeopardy, since former conviction or acquittal, to be available, must be pleaded (Criminal Code of Practice, sec. 164).
15. Criminal Law. — On appeal by defendant, every presumption was in favor of the regularity of the conviction.
16. Criminal Law. — Where record showed that defendant had been previously convicted of housebreaking and sentenced, and then by habeas corpus proceeding released from custody and remanded to custody of county jailer and thereafter tried and convicted again on same charge, the Court of Appeals would conclude that, after habeas corpus proceeding, indictment involved in first trial was dismissed without prejudice and matter resubmitted to grand jury and that grand jury returned the indictment (Criminal Code of Practice, sec. 423).
17. Criminal Law. — A defendant who procured the setting aside by habeas corpus proceeding of a conviction of housebreaking, and who was thereafter tried and convicted again on the same charge, could not complain of former jeopardy, since one may not complain of what a court does at his request.
Appeal from Harlan Circuit Court.
R.S. ROSE for appellant.
HUBERT MEREDITH, Attorney General, and W. OWEN KELLER, Assistant Attorney General, for appellee.
OPINION OF THE COURT BY DRURY, COMMISSIONER.Reversing.
Joe Allen was charged by indictment with housebreaking, and further in that indictment was charged with two previous convictions of felonies. See occurrences (c), (a), and (b), infra. He was convicted, his punishment was fixed at life imprisonment, and he has appealed. We will now epitomize what is shown in this record.
Epitome.
(a) On March 18, 1920, upon plea of guilty, Joe Allen was convicted of robbery in the circuit court of Bell county, Ky., and sentenced to 4 years in the penitentiary.
(b) On April 3, 1924, upon plea of guilty, Joe Allen was convicted of a felony (housebreaking) in the circuit court of Dickenson county, Va., and sentenced to 3 years in the penitentiary.
(c) On October 6, 1935, Joe Allen pried open a window and entered the depot of the Louisville & Nashville Railroad Company, in the city of Harlan in Harlan county, Ky., and pried off the wall a vending machine, which he broke open and took therefrom a number of pennies.
(d) On April 13, 1936, at a special extended term of the Harlan circuit court, Joe Allen was tried for occurrence (c) under an indictment for housebreaking, was found guilty, and his punishment fixed at 5 years in the penitentiary, and he began his imprisonment under that judgment.
(e) On December 11, 1936, in the case of Thompson v. Com., 266 Ky. 529, 99 S.W. (2d) 705, this court held that the above-mentioned special extended term of the Harlan circuit court was invalid.
(f) On February 20, 1937, after serving 10 months and 19 days under conviction (d), supra, Joe Allen was by habeas corpus proceeding, which he sued out, in Franklin circuit court, released from the custody of the warden of the penitentiary and remanded to the custody of the jailer of Harlan county, pursuant to section 423 of the Criminal Code of Practice.
(g) On April 3, 1937, the grand jury of Harlan county indicted Joe Allen for the housebreaking (c) and also charged him with the previous convictions (a) and (b), under section 1130, Kentucky Statutes, often called "The Habitual Criminal Act."
(h) On August 18, 1937, Allen was placed upon trial under this indictment, to which he pleaded simply, "Not Guilty."
(i) The jury found him guilty and found he had been convicted of felonies twice previously as charged in the indictment and fixed his punishment at life imprisonment, and from the judgment entered on that verdict he has appealed.
In his efforts to reverse this judgment, Allen has cited and relies upon a number of matters in the record, all of which he avers are erroneous. Some of these alleged errors are so trivial we shall not discuss them. Others have enough merit to justify a brief discussion of them and some rise to the dignity of reversible errors. These we shall discuss with greater elaboration.
Allen introduced no evidence. His guilt of breaking into this railroad depot, taking this vending machine, breaking it open, and taking the pennies out of it, is so thoroughly established by the evidence that Allen does not question it anywhere. All his hopes for reversal are rested upon other grounds.
Section 1130, Kentucky Statutes.
Our Habitual Criminal Act, section 1130, Kentucky Statutes, has been upon the statute books of Kentucky for quite a while. Just when it first appeared is of no great importance. It was section 22, c. 28, art. 1, on page 372 of volume 1 of Stanton's Revised Statutes. It was section 12, c. 29, art. 1, of our General Statutes, and, after the adoption of our present Constitution, the General Assembly, in its revision of our statutes, reenacted it as section 4, art. 1, c. 182, of Acts of 1891-92-93. See page 756 of those acts.
The Title.
In the brief filed for appellant, it is alleged that the title of this act is "Second and Third Conviction, Punishment"; that those five words are not a fair index to the act; and that the act is therefore void for conflict with section 51 of our present Constitution.
The five words, which we have italicized and of which the appellant is complaining, are no part of that act. They constitute simply a headline written and adopted by Judge Carroll when he compiled the Kentucky Statutes. If appellant will...
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