Allen v. Commonwealth

Citation272 Ky. 533,114 S.W.2d 757
PartiesALLEN v. COMMONWEALTH.
Decision Date11 March 1938
CourtCourt of Appeals of Kentucky

Appeal from Circuit Court, Harlan County.

Joe Allen was convicted of housebreaking and his punishment fixed at life imprisonment under the Habitual Criminal Act, and he appeals.

Judgment reversed.

R. S Rose, of Harlan, for appellant.

Hubert Meredith, Atty. Gen., and W. Owen Keller, Asst. Atty. Gen for the Commonwealth.

DRURY Commissioner.

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, Ky.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, Ky.Statutes.

Our Habitual Criminal Act, section 1130, Ky.Stats., 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, re-enacted 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 look on page 756 of the Acts of 1891-92-93, he will see beginning on that page an act, the title of which is, "An Act relating to crimes and punishments." Those words just quoted constitute a fit, pat and proper title to the entire act there found, which is chapter 182 of the Acts of 1891-92-93, of which section 4 became and is now section 1130, Ky.Statutes.

Constitutionality, Other Questions.

We shall not go into an extended discussion of other questions raised regarding the constitutionality of section 1130. We feel that has been fully and definitely settled by Taylor v. Com., 3 Ky.Law Rep. 783, 11 Ky.Op. 642; Chenowith v. Com., 12 S.W. 585, 11 Ky.Law Rep. 561; Combs v. Com., 20 S.W.268, 14 Ky.Law Rep.245, and Turner v. Com., 191 Ky. 825, 231 S.W. 519. Students who desire to pursue this question further should examine 16 C.J. p. 1339, § 3150 et seq., and 12 C.J. p. 1107, § 817 et seq., also notes in 58 A.L.R. 20 et seq., and 82 A.L.R. 345 et seq.

In the cases arising under our Prohibition Law, chapter 33, p. 109, Acts of 1922, the constitutionality of its provisions increasing the punishment upon second and third offenders was upheld. Here are some of them: Thacker v. Com., 228 Ky. 819, 16 S.W.2d 448, certiorari denied 280 U.S. 578, 50 S.Ct. 31, 74 L.Ed. 629; Pennington v. Com., 231 Ky. 494, 21 S.W.2d 808; and Dunnington v. Com., 231 Ky. 327, 21 S.W.2d 471.

Such statutes as our section 1130 do not punish twice for the same offense. They simply recognize that the first conviction imposed upon the one so convicted a definite status, that of a "convicted felon," and then provide that, when parties of that status are convicted of a second offense, the punishment may be increased, and in a like manner the punishment may be increased for third convictions because of the status imposed by the second conviction.

Proof of Conviction (a).

To prove the conviction of Joe Allen for the robbery (a), the Commonwealth introduced Bob Hollingsworth, who testified he was deputy clerk of the Bell circuit court, and then had in his custody the records of that court, for March, 1920, and he produced such records and read from Order Book 14, p. 129, the order of March 18, 1920, showing that Joe Allen was then and there tried for robbery, was convicted, and his punishment fixed by the verdict of the jury at 4 years in the penitentiary, and that by a later order Allen was sentenced.

Allen's objection to this evidence was overruled and he excepted, but apparently he was not very serious about his objection, and has made only a perfunctory mention of it in his brief. This point is utterly without merit. There could be no better evidence of Mr. Allen's trial and conviction then than the original order book entries solemnly made by the court officials at the time. Jones on Evidence, 2d Ed., § 1885.

Conviction (b).

The Commonwealth of Kentucky was not able to produce the original records of the circuit court of Virginia wherein Allen was convicted in 1924 of the housebreaking (b), supra, and in its efforts to prove this conviction the following paper was introduced over the objections of Allen and read to the jury:

"Virginia:
"At a circuit Court continued and held for Dickenson County, Virginia, at the Court House thereof on Thursday, April 3rd, 1924.
"Present: The same Wm. E. Burns, Judge Presiding on yesterday.
"(Indictment made by Special Grand jury at this Term, to-wit: Commonwealth vs. Joe Allen and Clyde Dalton, indictment for Felony, a true bill, Henry Keel, Foreman.)"
"Commonwealth of Virginia Plaintiff vs. Felony (House Breaking) Joe Allen, and Clyde Dalton Defendants.

"This day came the Commonwealth by her attorney and the defendants, Joe Allen and Clyde Dalton, appeared into court in custody of the Sheriff, and were arraigned, and upon their arraignment, plead guilty to the indictment, and in answer to the inquiry of the Court if they desired an attorney to defend them, stated that they did not desire a lawyer to defend them but confessed and plead guilty to the charge in the indictment.

"It is therefore considered by the Court that the defendants are guilty of house breaking and fix their punishment at three years in the State Penitentiary of this Commonwealth.

"And thereupon the defendants were asked if they had anything further to offer or to say why the court should not proceed to pronounce sentence upon them according to law, and nothing being offered in delay, it is therefore considered by the Court that the said defendants, Joe Allen and Clyde Dalton, be confined in the penitentiary of this Commonwealth for the period of three years each, and thereupon the prisoners were remanded to jail.

"[Signed] Wm. E. Burns, Judge.

"A copy Teste:

"W. E. Counts, Clerk

By K. E. Fuller, D. C.

"([Seal] Circuit Court, Dickenson County Virginia.)"

Reversible Errors.

When the above paper was offered in evidence Allen objected, his objections were overruled, the paper was read in evidence, and Allen excepted. That was error for several reasons, which we shall now discuss.

Allen was in the first part of this indictment charged with breaking into this railway depot, taking this...

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