Johnson v. State
| Decision Date | 25 March 1969 |
| Docket Number | No. 1167S127,1167S127 |
| Citation | 245 N.E.2d 659,252 Ind. 70 |
| Parties | Aaron Virl JOHNSON, Appellant, v. STATE of Indiana, Appellee. |
| 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.
Appellant was charged by affidavit in three counts with robbery, Ind.Ann.Stat. § 10--4101 (1956 Repl.), being an habitual criminal, Ind.Ann.Stat. § 9--2207 (1956 Repl.), and armed robbery, Ind.Ann.Stat. § 10--4709 (1956 Repl.). He was tried by jury, found guilty on all three counts, and was sentenced to life imprisonment for being an habitual criminal.
Ind.Ann.Stat. § 9--2208 (1956 Repl.) sets forth how a person is to be charged with being an habitual criminal.
'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.'
Pursuant to this statute Count Two of the affidavit in the case at bar charged that the appellant had been previously convicted and imprisoned for two felonies:
'* * * that AARON VIRL JOHNSON WAS on or about the 27th day of FEBRUARY, 1948 CONVICTED IN THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF INDIANA, OF A FELONY, TO WIT: INTERSTATE TRANSPORTATION OF A STOLEN MOTOR VEHICLE, IN VIOLATION OF TITLE 18, SECTION 408, OF THE UNITED STATES CODE, AND THAT AS A RESULT OF, AND BASED ON SUCH CONVICTION, SAID DEFENDANT WAS SENTENCED ON FEBRUARY 27, 1948, BY SAID DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF INDIANA, TO THE UNITED STATES PENITENTIARY AT TERRE HAUTE, IN THE STATE OF INDIANA, WHICH WAS THEN AND THERE A PENAL INSTITUTION, FOR A TERM OF FIVE (5) YEARS, AND THAT IN PURSUANCE OF SAID JUDGMENT SAID AARON VIRL JOHNSON WAS IMPRISONED AT THE UNITED STATES PENITENTIARY AT TERRE HAUTE, IN THE STATE OF INDIANA, IN ACCORDANCE WITH SAID SENTENCE.
THAT AARON VIRL JOHNSON WAS ON THE 21ST DAY OF FEBRUARY, 1963, CONVICTED IN SUPERIOR COURT OF DELAWARE COUNTY NO. 2, IN THE STATE OF INDIANA, OF A FELONY, TO WIT: SECOND DEGREE BURGLARY, AND THAT AS A RESULT OF, AND BASED ON SUCH CONVICTION, SAID DEFENDANT WAS SENTENCED ON THE 4TH DAY OF MARCH, 1963, BY SAID SUPERIOR COURT OF DELAWARE COUNTY NO. 2 TO THE INDIANA STATE PRISON, AT MICHIGAN CITY, IN THE STATE OF INDIANA, WHICH WAS THEN AND THERE A PENAL INSTITUTION, FOR A TERM OF NOT LESS THAN TWO (2) NOR MORE THAN FIVE (5) YEARS, AND THAT IN PURSUANCE OF SAID JUDGMENT SAID AARON VIRL JOHNSON WAS IMPRISONED AT THE SAID INDIANA STATE PRISON, AT MICHIGAN CITY, IN THE STATE OF INDIANA, IN ACCORDANCE WITH SAID SENTENCE * * *'
The appellant filed a verified motion to quash this count on two separate grounds:
'(1) That said Second County (sic) of Affidavit, more specifically, rhetorical paragraph One (1) thereof, does not set out with certainty which County of the State of Indiana the Defendant was found guilty in and from which County said Defendant was sentenced. The Federal District Court for the Southern District of Indiana sits in many of the Counties in the State of Indiana;
(2) That said Second Count of Affidavit violates the right of Defendant not to incriminate himself in contravention of the Fifth Amendment of the Constitution of the United States and violates further the Defendant's right to due process of law as provided by the Fourteenth Amendment of the Constitution of the United States.'
In a memorandum attached to this motion, the appellant argued that:
'To let the jury in the principal charge hear and know of defendant's past criminal record, whether he takes the stand or not, is, in effect, making the defendant testify against himself and obviously contravenes the protection of the Fifth Amendment to the Constitution of the United States.'
The trial court overruled the motion to quash, and the appellant contends that this ruling constitutes reversible error.
In support of his first contention, appellant argues that an affidavit charging a person with being an habitual criminal must allege two previous convictions with specificity and certainty, and that, since this affidavit did not allege the county in which one of the convictions had been obtained, it was not sufficiently specific. While it is true that the affidavit does not allege that the federal District Court for the Southern District of Indiana is located in Marion County, Indiana, we do not think this is an allegation which is required or appropriate. There is only one District Court of the United States for the Southern District of Indiana; it is not a county court and need not be identified by a county designation. Appellant's reliance on Shutt v. State (1954), 233 Ind. 120, 117 N.E.2d 268, and Goldstine v. State (1952), 230 Ind. 343, 103 N.E.2d 438, is without merit since, in each of those cases, the charge failed to specify the name of the particular court in which the conviction had been obtained. Midland v. State (1943), 220 Ind. 668, 46 N.E.2d 200, is inapplicable to the issues in this case as the affidavit in Midland failed to allege where the defendant had been imprisoned.
Appellant's second contention can not be the basis of quashing Count Two of the affidavit. Ind.Ann.Stat. § 9--1129 (1956 Repl.) sets forth the reasons for which a defendant may move to quash an affidavit:
'The defendant may move to quash the indictment or affidavit when it appears upon the face thereof either:
First. That the grand jury which found the indictment had no legal authority to inquire into the offense charged.
Second. That the facts stated in the indictment or affidavit do not constitute a public offense.
Third. That the indictment or affidavit contains any matter which, if true, would constitute a legal justification of the offense charged, or other legal bar to the prosecution.
Fourth. That the indictment or affidavit does not state the offense with sufficient certainty.'
Since appellant's second contention does not fall within one of the statutory grounds for sustaining a motion to quash, the trial court could not properly have considered this argument in ruling on the motion. Bottorff v. State (1927), 199 Ind. 540, 156 N.E....
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