Johnson v. State, 1167
| Decision Date | 12 May 1969 |
| Docket Number | No. 1167,1167 |
| Citation | 247 N.E.2d 212,252 Ind. 70 |
| Parties | Aaron Virl JOHNSON, Appellant, v. STATE of Indiana, Appellee. S 127. |
| Court | Indiana Supreme Court |
Richard Clapp, Muncie, Forrest Bowman, Jr., Indianapolis, for appellant.
John J. Dillon, Atty. Gen., Richard V. Bennett, Deputy Atty. Gen., Indianapolis, for appellee.
ON PETITION FOR REHEARING
On March 25, 1969, this court affirmed the appellant's conviction for Armed Robbery and being an Habitual Criminal. Johnson v. State (1969), Ind., 245 N.E.2d 659. In this petition for rehearing, the appellant correctly points out that we did not discuss the contention raised in Point Four of his brief. We acknowledge the omission and propose now to discuss this issue.
Under Point Four, the appellant asserts that the judgment should be reversed because the form of the jury's verdict did not follow the exact language of the Habitual Criminal Count of the charging affidavit. In Count Two of this affidavit, appellant was charged with having previously committed two felonies: interstate transportation of a stolen motor vehicle and second degree burglary. During the trial, certified records showing these two convictions as well as two other unrelated convictions were admitted into evidence without proper objection from the appellant's trial counsel. Thus, there was some evidence from which the jury could have found that the appellant had been previously convicted of four felonies, instead of two. The verdict of the jury reads as follows:
'We, the jury, find that the defendant, Aaron Virl Johnson, has been twice previously convicted, sentenced and imprisoned in penal institutions for felonies.'
The appellant now contends that, unless the jury is required to specifically state which two convictions were being referred to in their verdict, it is possible that the appellant has been found guilty of something for which he was not charged. From this premise, the appellant argues that the failure of the jury to follow the exact language of the Habitual Criminal charge should constitute a reversible error. The appellant has found dictum in one case to the effect that the verdict of the jury should follow 'the exact language of the habitual criminal portion of the indictment.' C.f., Kelley v. State (1933), 204 Ind. 612, 185 N.E. 453.
We do not believe that this statement in Kelley should be interpreted to mean that the jury must expressly specify the two felonies for which they find the appellant...
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