Barr v. State

• Decision Date: 27 October 1933
• Docket Number: No. 25815.,25815.
• Citation: 187 N.E. 259,205 Ind. 481
• Parties: BARR v. STATE.
• Court: Indiana Supreme Court

205 Ind. 481

187 N.E. 259

BARR

v.STATE.

No. 25815.

Supreme Court of Indiana.

Oct. 27, 1933.

Appeal from Starke Circuit Court; Wm. C. Pentecost, Judge.

Meade Barr was convicted of assault and battery with intent to kill, and with being an habitual criminal, and he appeals.

Affirmed.

Wm. J. Reed, of Knox, for appellant.

James M. Ogden, Atty. Gen., and E. Burke Walker, Deputy Atty. Gen., for the State.

ROLL, Judge.

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' Ann. St. 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 indictment, omitting the caption and the formal parts, charge:

“That, Meade Barr, late of said County and State aforesaid, did then and there unlawfully and feloniously and in a rude, insolent and angry manner commit a violent injury on the person of one Elmer H. Shilling, he, the said Meade Barr, then and there having then present ability to commit said injury by then and there unlawfully, feloniously, purposely and with premeditated malice shoot said Elmer H. Shilling, with a certain shot gun, then and there loaded with gun powder and leaden shot, which shot gun the said Meade Barr, then and there had and held in his hands, with intent then and thereby to unlawfully, feloniously, purposely and with premeditated malice kill and murder said Elmer H. Shilling, contrary etc.

“The Grand Jury, aforesaid, upon their oaths further present that heretofore to-wit: -on or about the twenty-ninth (29th) day of September A. D., One Thousand Nine Hundred Three (1903) said Meade Barr was charged in a certain criminal action in the Criminal Court of Marion County and State of Indiana in an action entitled: ‘State of Indiana v. Meade Barr,’ with the commission of felony, namely, ‘Manslaughter’ and that said Meade Barr was upon said date and in said court convicted of manslaughter and sentenced and imprisoned in the Indiana Reformatory of the State of Indiana by the judgment of said Criminal Court of Marion County, Indiana, for said offense of manslaughter for a term of two (2) to twenty-one (21) years and that there was no appeal from the judgment of said Circuit Court of Marion County and that said judgment remained in full force and effect. The Indiana Reformatory of the State of Indiana being a penal institution for felonies; and that said Meade Barr convicted aforesaid in the Criminal Court of Marion County, Indiana, and Meade Barr the defendant herein, is one, identical and the same person.

“The Grand Jury upon their oath further present that heretofore to-wit:-on or about the eighteenth (18th) day of March A. D., Nineteen Hundred Twenty-two (1922), said Meade Barr was charged in a certain Criminal action in Bartholomew Circuit Court at Columbus, Bartholomew County of the State of Indiana in an action entitled: ‘State of Indiana v. Meade Barr,’ with the commission of a felony, namely, ‘Assault with Attempt to Kill,’ and that said Meade Barr was upon said date and in said court convicted, sentenced and ordered imprisoned in the Indiana State Prison of the State of Indiana, being a penal institution for felonies, by said Bartholomew v. Circuit Court of Bartholomew County, Indiana, for said offense of assault with attempt to kill, for a term of not less than two (2) years or more than fourteen (14) years and that the judgment aforesaid of said Bartholomew Circuit Court was never appealed from and said judgment remains in full force and effect and that said Meade Barr convicted aforesaid in said Bartholomew Circuit Court, Bartholomew County, Indiana, and Meade Barr, the defendant, herein is one, identical and the same person.

“The Grand Jury upon their oath further present that by reason of the premises as herein before specifically set out, said Meade Barr, defendant herein, has been twice convicted, sentenced and imprisoned in the penal institutions of the state of Indiana as heretofore specifically enumerated for felonies by him committed, contrary, etc.”

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 assignment 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 section 2417, Burns' Ann. St. Supp. 1929, which reads as follows: “Whoever perpetrates an assault or assault and battery upon any human being with intent to commit a felony, shall, on conviction, be imprisoned in the state prison for not less than one nor more than ten 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:

Section 2339. “Every person who, after having been twice convicted, sentenced and imprisoned in some penal institution for felony, whether committed heretofore or hereafter, and whether committed in this state or elsewhere within the limits of the United States of America, shall be convicted in any circuit or criminal court in this state for a felony hereafter committed, shall be deemed and taken to be an habitual criminal, and he or she shall be sentenced to imprisonment in the state prison for and during his or her life.”

Section 2340. “To authorize a sentence of imprisonment for life under this act, the indictment or affidavit shall allege that the defendant has been previously twice convicted, sentenced and imprisoned in some penal institution, for felonies, describing each separately. If the trial jury, in their verdict, find these facts to be true, and convict such defendant of the third felony, the trial court, after passing sentence of imprisonment for a specific term, as prescribed by the statute, shall proceed to sentence the defendant to imprisonment for his or her life.”

It will be observed that by the express terms of section 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 defendant was an habitual criminal, in order to give the defendant an opportunity to plead thereto, or make defense to such a charge.

The Supreme Court of Florida, in the case of State ex rel. Lockmiller v. Mayo et al. (1924) 88 Fla. 96, 101 So. 228, 230, had under consideration the question here presented, and, in discussing the same, held that, whether the section intended to prescribe merely increased punishment for habitual offenders or create a new offense, a felony, for a violation of the act, the allegation of a prior conviction was a necessary element in the so-called felony; that the prior conviction was an element to be proved; but, “It was not, however, an integral part of the crime charged, in the sense that the defendant's...