Hanks v. State, 28370.
| Decision Date | 21 January 1948 |
| Docket Number | No. 28370.,28370. |
| Citation | 76 N.E.2d 702,225 Ind. 593 |
| Parties | HANKS v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Harold Hanks was convicted of assault and battery with intent to commit rape and of being an habitual criminal, and he appelas.
Affirmed.
Appeal from Superior Court, Elkhart County; William E. Wider, judge.
Harrison A. Church, of Elkhart, for appellant.
Cleon H. Foust, Atty. Gen., Frank E. Coughlin, first Deputy Atty. Gen., and Merl M. Wall, Deputy Atty. Gen. , for appellee.
The appellant was charged in the Elkhart Superior Court by affidavit in two counts. The first count charged assault and battery with intent to commit a felony, namely: rape, and being an habitual criminal. The second count alleged assault and battery with intent to commit a felony, namely: rape.
The first count, after alleging assault and battery on the prosecuting witness with intent then and there and teereby feloniously and forcibly to ravish and carnally know her against her will, alleged three prior convictions, sentences and imprisonments for felony against the said appellant in the State of Michigan. This court described specifically the previous convictions, sentences and imprisonments. The verdict of the jury found the appellant guilty of assault and battery with intent to commit a felony and specifically found that the defendant was convicted, sentenced and imprisoned in the instances described in the first count of the affidavit. Upon this verdict the Court rendered judgment sentencing the appellant to imprisonment in the Indiana State Prison for not less than one or more than ten years and upon the finding of the jury that the appellant had been theretofore convicted and imprisoned for the commission of the three felonies, sentenced the appellant to imprisonment in the Indiana State Prison for and during the remainder of his life as an habitual criminal.
Section 9-2207, Burns' 1933, 1942 Replacement is our habitual criminal statute. This statute requires that every person who, after having been twice convicted, sentenced and imprisoned in some penal institution for a felony, shall be convicted in this state for a felony shall be deemed an habitual criminal and shall be sentenced to life imprisonment. It was only necessary therefore, that the appellant should have been charged with two previous convictions.
The allegation in count one as to a third conviction may be treated as surplusage. Sammons v. State, 1935, 210 Ind. 40, 199 N.E. 555. The proof of more than two former convictions was not harmful to the defendant as the proof of these former convictions was offered for the single purpose of classifying the defendant as an habitual criminal. Metzger v. State, 1937, 214 Ind. 113, 13 N.E.2d 519.
The appellant insists that our habitual criminal statute violates Article 1, § 14 of the Constitution of our state. He contends that the admission of this evidence as to former offenses, which is provided for by this statute, placed the appellant in jeopardy a second time for the same offense...
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...46, cert. denied 451 U.S. 991, 101 S.Ct. 2331, 68 L.Ed.2d 851; Hall v. State (1980), 273 Ind. 507, 405 N.E.2d 530; Hanks v. State (1948), 225 Ind. 593, 76 N.E.2d 702. So, I must disagree with the majority's position in this case that the State's failure to prove the commission date of Weath......
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...State (1980), Ind., 273 Ind. 507, 405 N.E.2d 530, 535, citing Jessup v. State (1971), 256 Ind. 409, 269 N.E.2d 374 and Hanks v. State (1948), 225 Ind. 593, 76 N.E.2d 702. Even so, however, the court has been careful to register its concern that when general verdict forms are used, as they f......
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Jackson v. State, 28937
...cumulative and no reversible error was committed by its admission. Metzger v. State, 1938, 214 Ind. 113, 13 N.E.2d 519; Hanks v. State, 1948, 225 Ind. 593, 76 N.E.2d 702; See also: 116 A.L.R. Annotation, page 232(4); 82 A.L.R. Annotation, page Fourth: Specifications 5, 6 and 7 of appellant'......