Barr v. State
Decision Date | 27 October 1933 |
Docket Number | 25,815 |
Parties | Barr v. State of Indiana |
Court | Indiana Supreme Court |
1. INDICTMENT AND AFFIDAVIT---Habitual Criminal Charge---Not Substantive Offense.---Allegations of two former convictions of felonies in an indictment charging assault and battery with intent to kill does not make the indictment duplicitous as charging two substantive offenses. pp. 484, 488.
2. CRIMINAL LAW---Habitual Criminals---Indictment---Allegation of Previous Convictions.---Under the habitual criminal law (2339, 2340, Burns 1926), former convictions must be alleged in the indictment charging the last offense, and be proved at trial. p. 485.
3. CRIMINAL LAW---Habitual Criminals---Indictment---Motion to Separate Causes.---Where defendant was charged in one count of an indictment with assault and battery with intent to kill and with having been twice previously convicted of felonies his motions to separate causes of action and to strike out portion charging previous convictions held properly refused p. 488.
4. CRIMINAL LAW---Habitual Criminals---Statute---Constitutionality.---The habitual criminal law (2339, 2340, Burns 1926) makes a reasonable classification and is not violative of 23 of the Bill of Rights, 75, Burns 1926, declaring for equal protection of the laws. p. 488.
5. CRIMINAL LAW---Habitual Criminals---Evidence---Prior Convictions.---In prosecution for a felony and as an habitual criminal, certified copies of court records in prior convictions and of prison records showing admission therein in proof of the allegations of prior convictions, held properly admitted. p. 489.
6. CRIMINAL LAW---Trial---Instructions---Confusing and Meaningless.---Instruction as to intent that was meaningless and would only confuse the jury held properly refused. p 490.
From Starke Circuit Court; William C. Pentecost, Judge.
Meade Barr was convicted of assault and battery with intent to kill and with being an habitual criminal, and he appealed.
Affirmed.
William J. Reed, for appellant.
James M. Ogden, Attorney-General, and E. Burke Walker, Deputy Attorney-General, for the State.
Appellant was charged by a grand jury indictment with assault and battery with intent to kill and with being an habitual criminal as provided by sections 2339, 2340, Burns R. S. 1926.
There was a trial by jury and a verdict of guilty of the crime of assault and battery with intent to kill as charged and a finding that the defendant had been convicted of a felony on two previous occasions, and imprisoned for the offenses committed. The court entered judgment on the verdict and sentenced the defendant to the state prison for the offense charged for a period of not less than one year and not more than ten years, and that he be imprisoned in the state prison for life as an habitual criminal.
The court overruled appellant's motion to require appellee to separate the offense charged in the indictment from the offense charging former convictions, and also overruled appellant's motion to strike out that part of the indictment relating to the two former convictions. The correctness of the court's action on these two motions is challenged by appellant's first and second assignments of error.
Appellant contends that the court was in error by refusing to sustain his motion to separate the offense charged in the indictment from the offense charging conviction, for the reason the offense charged is separate and independent from the charge of former conviction and cannot be tried on the charge of former convictions until he has been convicted of the crime charged. It is appellant's view that the indictment charges two substantive offenses and being in one count his motions should have been sustained. Appellant is in error in his assumption that two substantive offenses are charged in the indictment. Only one crime is charged. Appellant was charged with the crime of assault and battery with intent to commit a felony as defined by § 2417, Burns Ann. St. Supp. 1929, which reads as follows:
"Whoever perpetrates an assault or an assault and battery upon any human being, with intent to commit a felony, shall, upon conviction, be imprisoned in the state prison not less than one year nor more than fourteen years, . . ."
The indictment in the instant case, in addition to charging the crime of assault and battery with intent to commit a felony, alleges that appellant was an habitual criminal, having been twice convicted, sentenced and imprisoned in the Indiana State Prison for a felony, setting out the dates, the court in which defendant was convicted and stating specifically the crime for which he had been convicted as provided by sections 2339 and 2340, which sections read as follows:
It will be observed that by the express terms of § 2340, the indictment or information must allege that the defendant had been previously convicted, sentenced and imprisoned in some penal institution for felonies before he can be adjudged an habitual criminal. We think it well settled that such allegations are necessary facts to be alleged and proven at the trial. It was decided in the case of People v. Wagner (1926), 78 Cal.App. 503 248 P. 946, that it was necessary to charge in the indictment or information that the...
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