Jones v. State
| Citation | 267 Ind. 205,369 N.E.2d 418 |
| Decision Date | 09 November 1977 |
| Docket Number | No. 177S3,177S3 |
| Parties | Bobby Lee JONES, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
John S. Bloom, Columbia City, for appellant.
Theo. L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant Jones was convicted of second-degree burglary and theft by a jury on July 12, 1976, in Whitley Circuit Court. On July 14, 1976, he was convicted by a jury in the same court of being a habitual criminal. Appellant was sentenced to imprisonment for two to five years for second-degree burglary, fined five-hundred dollars for theft, and sentenced to life imprisonment for being a habitual criminal.
Two issues are raised in regard to appellant's conviction as a habitual criminal: (1) that various records of appellant's prior convictions and commitments were improperly admitted into evidence; (2) that there was insufficient evidence to support the conviction. Although appellant raises no questions in regard to his convictions for second-degree burglary and theft, we find a third issue for our review in this case involving the sentences given for those crimes.
Two records from the Indiana State Reformatory relating to appellant's prior convictions and commitments, in 1963 for petty larceny and in 1967 for second-degree burglary, were admitted under the public document exception to the hearsay rule, Ind.Code § 34-1-17-7 (Burns 1973):
"Exemplifications or copies of records, and records of deeds and other instruments, or of office books or parts thereof, and official bonds which are kept in any public office in this state, shall be proved or admitted as legal evidence in any court or office in this state, by the attestation of the keeper of said records, or books, deeds or other instruments, or official bonds, that the same are true and complete copies of the records, bonds, instruments or books, or parts thereof, in his custody, and the seal of office of said keeper thereto annexed if there be a seal, and if there be no official seal, there shall be attached to such attestation, the certificate of the clerk, and the seal of the circuit or superior court of the proper county where such keeper resides, that such attestation is made by the proper officer."
The Reformatory records were certified copies of commitment orders and fingerprints. They were attached to certification by George W. Phend, who certified: that he was the Superintendent of the Indiana Reformatory; that in his office he had legal custody of the original files and records of persons committed to said institution and that the attached records were those original records, being duplicate copies of those appearing in the files and records. The exemplification carried a certification of the Madison Circuit Court and the Madison Circuit Court Clerk that George W. Phend was the proper officer who had custody of the exhibits as Superintendent of the Indiana Reformatory located in Madison County.
None of appellant's arguments against admission of these two Reformatory records have any merit. Appellant states that identifying marks put on the records by Reformatory personnel after receiving them from Whitley Circuit Court are alterations which make the records inadmissible. These marks, however, showing such things as the date of the receipt of the documents, a personnel number assigned to the person being committed, and the Court's exhibit number, in fact completed the documents for the purposes of the Reformatory's records. The marks represent the authority of the institution to take custody of the prisoner and to imprison him for the time provided therein. Appellant next argues that these records do not comply with the statute since they were not made by Superintendent Phend, and since he did not have firsthand knowledge of their contents. The statute, however, clearly provides that the exhibit is admissible if exemplified by the keeper of the records. Many records are held by custodians who did not make them and who are without firsthand knowledge of the records' every detail. Ind.R.Tr.P. 44(A)(1) provides that proof of an official record may be evidenced by an official publication, or a copy attested to by the officer having legal custody of the record or his deputy. This rule is made applicable to criminal trials through Ind.R.Crim.P. 21. Eldridge v. State, (1977) Ind., 361 N.E.2d 155, 158. Finally, appellant argues that the Reformatory records are not "public" records within the meaning of the statute, since they are not available for examination by members of the public. This contention is without merit, since the office of the Superintendent of the Indiana Reformatory is a public office.
Appellant next challenges the admission of index cards containing his thumbprints, and record sheets containing the histories of his confinement at the State Reformatory. These documents were admitted through the testimony of Mr. Sam Whiteman, who held the position of administrative assistant to the parole board at the Indiana Reformatory. He identified each of the exhibits and testified that they were exact duplicate copies of records in his custody at the Reformatory, kept under authority of his office and for the furtherance of the duties of his office. Appellant argues that these documents do not qualify either as public documents or under the business records exception to the hearsay rule, because Mr. Whiteman could not testify that he made the records, had firsthand knowledge of when they were made, by whom they were made, or what the contents were.
The requisites for admission of a hearsay document offered under the "business record" exception are set forth in American United Life Ins. Co. v....
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McFarland v. State, 2-177A33
...not intended by the double jeopardy clause. The Supreme Court cited Sansom v. State, (1977) Ind., 366 N.E.2d 1171, and Jones v. State, (1977) Ind., 369 N.E.2d 418, as two cases in which erroneous results were reached. In both, the Court's application of the "same operative facts" test led t......
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...has caused us to reach incorrect results in two recent opinions. In Sansom v. State, (1977) Ind., 366 N.E.2d 1171, and Jones v. State, (1977) Ind., 369 N.E.2d 418 we vacated sentences on theft convictions where the defendants had been convicted of theft and second-degree burglary. Our reaso......
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...the jury's conclusion. Defendant's contention must consequently fail. Page v. State, (1979) Ind., 395 N.E.2d 235; Jones v. State, (1977) 267 Ind. 205, 369 N.E.2d 418. V. Defendant asserts the trial court erred when it permitted the state to introduce a report of the alleged escape entitled ......
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