Dougherty v. State, 26119.

Decision Date22 June 1934
Docket NumberNo. 26119.,26119.
PartiesDOUGHERTY v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Clinton Circuit Court; Benton A. De Vol, Judge.

Edward Dougherty was convicted of possession of burglar tools with intent to commit burglary after previous conviction of a felony, and he appeals.

Affirmed.

Pete H. Dawson, of Indianapolis, for appellant.

James M. Ogden, Atty. Gen., and Robert L. Bailey, Sp. Asst. Atty. Gen., for the State.

TREANOR, Judge.

Appellant was convicted upon an affidavit1 drawn under section 10–703, Burns' Ind. St. Ann. 1933, section 2447.2 Burns' Ann. Ind. St. Supp. 1929, Acts 1927, c. 49, § 1, p. 131,2 which defines as an offense the possession of burglar tools with intent to commit a burglary by a person previously convicted of a felony. He assigns as error (1) the overruling of his motion in arrest of judgment and (2) the overruling of his motion for new trial. The motion in arrest of judgment is upon the ground that “the facts stated in the affidavit do not constitute a public offense under the laws of the State of Indiana; appellant contending in particular that the offense attempted to be charged is not stated because “the date of the commission of the former crime by the accused, the place, together with the fact and date of conviction and sentence was not set forth in the affidavit.”

Appellant did not attack the affidavit by motion to quash for lack of certainty; and, if an affidavit is substantially in the language of a statute which defines an offense and states directly and specifically what acts shall constitute the offense, judgment will not be arrested on the ground that the facts stated in the affidavit do not constitute a public offense. Mann v. State (Ind. Sup. 1933) 186 N. E. 283. And it will be noted that the affidavit upon which appellant was tried and convicted followed the language of the statute.3 Further, it is provided in section 9–1127, Burns' etc., 1933, section 2225, Burns' etc., 1926, Acts 1905, c. 169, § 192, p. 584, that:

“No *** affidavit shall be deemed invalid *** nor shall the trial, judgment or other proceeding be stayed, arrested or in any manner affected for any of the following defects: ***

“Tenth. For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

In support of his contention that “the date of the commission of the former crime by the accused, the place, together with the fact and date of conviction and sentence” should have been set forth in the affidavit, appellant cites the case of Evans v. State (1898) 150 Ind. 651, 50 N. E. 820, which contains the following statement: “The doctrine that when a statute imposes a greater punishment upon second and subsequent convictions of an offense, the former conviction must be alleged in the indictment and proved at the trial, or the same can only be punished as a first offense, is sustained by the great weight of the authorities.” It is apparent from the opinion of the court in that case that the alleged defect in the information was a complete absence of an allegation of a previous conviction. The court did not purport to set out the particular facts concerning such former conviction which need to be alleged to constitute a valid charge and to support a judgment assessing the punishment prescribed “upon a second conviction.” Further, the question presented for review did not relate to the sufficiency of the indictment as against a motion in arrest of judgment. We hold that the facts alleged in the affidavit in the instant case were sufficient to constitute a public offense.

Under his second assignment of error, appellant relies first upon the alleged irregularity and error in the admission of conversations between defendant and witnesses in which the defendant admitted having been previously convicted of murder. Appellant's statements were competent to be received in evidence against him as an admission of a material fact in issue,4 unless the fact sought to be established by the statements belongs to a class of which proof is forbidden by use of admissions.5 Also, in determining the competency of the testimony as to defendant's admissions,we must consider that an authenticated copy of the court record of a conviction of a person bearing appellant's name was admitted in evidence.

As pointed out in the excerpt from Wigmore, supra, note 5, there are certain restrictions upon the use of admissions to prove contents of documents. But, where the defendant's oral admission bears upon some fact in relation to a document which the document itself would not be sufficient to either prove or disprove, as in this case the appellant's identity with the person referred to in the attested document, evidence of such admission is competent; and, where the document itself is offered in evidence the appellant's oral admission is not improperly received even though it bears upon certain other facts wholly provable by the document.6 In this case the proof of the contents of the record of an alleged previous conviction does not depend upon the oral testimony of appellant's admissions, but upon the properly authenticated copy of the records of the court in which such conviction was had, which copy was itself received in evidence. The chief value of appellant's admission was that it tended to identify him as the Edward Dougherty whose conviction was shown by the court record.

Appellant cites Farley v. State (1877) 57 Ind. 331, as authority for the proposition that the evidence of his admission of a previous conviction was improperly received. In that case it was held improper to prove by the accused on cross–examination when a witness in his own behalf that he had been previously convicted. The holding in that case was based upon (1) the proposition that it was improper to impeach or sustain a witnessin a criminal cause by proof of general moral character; and (2) the proposition that, “where the question involves the fact of a previous conviction, it ought not to be asked; because there is higher and better evidence which ought to be offered.” It is no longer the law in Indiana that a witness may not be impeached by proof of general moral character; and such proof may consist of admitting, on the witness stand, a former conviction. Dotterer v. State (1909) 172 Ind. 357, 88 N. E. 689, 30 L. R. A. (N. S.) 846. The reasoning of Farley v. State, supra, cannot apply to the facts of this case.

The trial court did not err in permitting the witnesses to testify to appellant's admission.

Appellant urges that the court erred in admitting certain exhibits, which consisted of tools, implements, dynamite caps, and a sack which had contained dynamite. The sack which had contained dynamite was in appellant's possession at the time of his arrest, and the other exhibits objected to were found immediately after his arrest, in the automobile in which he had been riding just prior to his arrest. There was no error in admitting the exhibits in evidence.

Appellant also insists that it was error to permit a witness to testify that certain of the exhibits were tools and implements such as are ordinarily used by burglars, without the witness first having qualified as an expert. The witness testified that he was a sergeant of police, had been with the Chicago police department since 1907, that in this capacity he had made various arrests of burglars while “in the activities of burglarizing places,” and that in making those arrests he had become acquainted with and was “acquainted with the tools and implements used by burglars in their burglarious doings,” and was acquainted with “what is known as burglar tools and implements.”

The question of a witness' qualifications to testify as an expert is primarily for the determination of the trial court whose decision will be set aside only where there is a manifest abuse of discretion or no evidence to support the decision.7 There was evidence to support the trial court's decision on this question, and there was no abuse of discretion.

The last alleged error urged under motion for new trial is the action of the trial court in admitting in evidence Exhibit 15 which was a duly authenticated copy of a penitentiary mittimus of the criminal court of Cook county, Ill., in a cause entitled People of the State of Illinois v. Edward Dougherty, wherein the defendant was sentenced to the penitentiary of the state at Joliet, Ill., for sixteen years, upon a conviction in said criminal court for the offense of murder. It was objected (1) that such exhibit did not show that the crime for which appellant was alleged to have been previously convicted was a felony in Illinois; and (2) that such record should not have been admitted until the state had well established that appellant and the person mentioned in the record were one and the same.

Our statute (section 9–101, Burns', etc., 1933, section 2027, Burns', etc., 1926, Acts 1905, c. 169, p. 584, § 1) provides that “all crimes and public offenses which may be punished with death or imprisonment in the state prison shall be denominated felonies.” The word “felony” as used in the statute under which appellant was charged will be interpreted in the light of that definition; and, where the previous offense relied upon was committed in another...

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    ...unless there is an abuse of discretion. City of Fort Wayne v. Coombs (1886), 107 Ind. 75, 84--85, 7 N.E. 743; Dougherty v. State (1934), 206 Ind. 678, 686, 191 N.E. 84; Chicago & Erie Railroad Company v. Monesmith (1941), 110 Ind.App. 281, 288, 37 N.E.2d 724; Tyler v. State (1968), 250 Ind.......
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