Kelley v. State
| Citation | 185 N.E. 453,204 Ind. 612 |
| Decision Date | 28 April 1933 |
| Docket Number | 25,907 |
| Parties | Kelley v. State of Indiana |
| Court | Supreme Court of Indiana |
1. INDICTMENT AND AFFIDAVIT---Habitual Criminals---Allegations of Former Convictions.---To authorize a life sentence as habitual criminal (2339 Burns 1926), the previous convictions, sentences and imprisonments must be described specifically. p. 616.
2. CRIMINAL LAW---Habitual Criminals---Former Convictions---Variance.---To support conviction as habitual criminal, the jury must find that defendant was convicted sentenced and imprisoned in the particular instances described and not otherwise. p. 616.
3. CRIMINAL LAW---Habitual Criminals---Former Convictions---Proof.---In a prosecution under the Habitual Criminal Act (2339, 2340 Burns 1926), proof of the prior convictions may be made by certified transcripts of respective judgments, provided the defendant is identified as the person against whom the judgments were had. p. 617.
4. CRIMINAL LAW---Habitual Criminals---Former Convictions---Certified Transcript of Former Judgment---Sufficiency.---In a prosecution under the Habitual Criminal Act (2339, 2340 Burns 1926), a certified transcript of a former conviction, which did not include the indictment and failed to describe the offense for which defendant was convicted, was held insufficient to support a finding of former conviction for false pretense as alleged in the indictment. p. 617.
5. CRIMINAL LAW---Habitual Criminals---Former Convictions---Certified Transcript of Former Judgment---Sufficiency.---In a prosecution under the Habitual Criminal Act (2339, 2340 Burns 1926), a certified transcript of a former conviction, in which the indictment was shown to be in three counts charging larceny, forgery and the uttering and publishing of counterfeit money and it was further shown that defendant plead guilty and was sentenced for said crimes, was held insufficient to show a conviction for conspiracy as alleged in the indictment and found by the verdict. p. 617.
6. CRIMINAL LAW---Habitual Criminals---Proof of Two Prior Convictions Essential.---A judgment of life imprisonment as an habitual criminal is unauthorized where proof is sufficient to establish but one of the specific prior convictions charged. p. 617.
7. CRIMINAL LAW---Habitual Criminals---Identity of Defendant---Photographs---Hearsay.---Photographs of the defendant on trial furnished no legal evidence that defendant was the same person referred to by other names in certified transcripts of former convictions and were, at best, hearsay and unsworn to. p. 618.
8. CRIMINAL LAW---Incompetent Evidence---Not cured by Defendant's Admission of Fact Sought to be Proved Thereby.---Error in admitting incompetent photograph exhibits to prove defendant's identity held not cured by defendant's admission of identity to police officer. p 618.
9. CRIMINAL LAW---Habitual Criminals---Identity of Defendant---Admissions Held Insufficient.---Admissions of defendant to a police officer that he had been convicted in Federal Court and served time in Leavenworth and that he had been convicted in New York State and served time there, held not sufficient to identify defendant as the same person referred to by other names in certified transcripts of specific convictions for specific offenses. p. 618.
10. CRIMINAL LAW---Habitual Criminals---Former Convictions---Identity of Defendant---Sufficiency of Pardon to Establish.---Where certified transcript of former conviction was admitted over defendant's objection that he had not been identified as the person therein referred to and defendant then introduced a pardon from such conviction such pardon was held insufficient to identify defendant on trial as same person who was convicted and pardoned in such former case. p. 620.
11. CRIMINAL LAW---Indictment---Duplicity.---When a statute makes it a crime to do any one of several things mentioned disjunctively, all of which are punished alike, the whole may be charged conjunctively in a single count without objection for duplicity. p. 620.
12. FORGERY---Indictment---Surplusage.---Where there was an attempt to charge both forgery and the uttering of the forged instrument in one count of an indictment, but there was no allegation that the instrument was uttered or published, the remaining allegations referring to the offense of uttering the instrument were held surplusage. p. 621.
13. FORGERY---Person Defrauded---Reference Thereto not Required in Forged Instrument.---The person intended to be defrauded, as alleged in the indictment, need not be connected with or referred to in the forged instrument. p. 621.
14. INDICTMENT AND AFFIDAVIT---For Making Forged Instrument---Held Sufficient.---Count of indictment is set out and held suffi- cient as a charge of making a forged instrument under 2946 Burns 1926. p. 621.
15. FORGERY---Check---Signature---Existence of Such Person Immaterial.---In a prosecution for forging a check it is immaterial whether or not there is such a person as the signature imports, if, in fact, the defendant forged the signature. p. 622.
16. FORGERY---Check---Genuineness of---Endorsement.---In a prosecution for forging a check the genuineness of the endorsement is immaterial if the name of the maker was forged by the defendant. p. 623.
17. CRIMINAL LAW---Habitual Criminal Act---Constitutionality.---The Habitual Criminal Act (2339, 2340 Burns 1926) held not unconstitutional on ground that it places defendant twice in jeopardy for the same offense; or that it authorized punishments for crimes alleged to have been committed in other jurisdictions; or that it provides for cruel and unusual punishment; or that it is not based on principles of reformation; or that it is an ex post facto law authorizing punishment for crimes committed prior to its passage; or that it does not recognize limitations of actions. p. 623.
18. CRIMINAL LAW---Habitual Criminals---Three or More Former Convictions Charged---Proof of Two Sufficient.---Where defendant is charged with three or more former convictions in a prosecution as an habitual criminal, proof of two only is sufficient. p. 624.
19. CRIMINAL LAW---Habitual Criminal Act---"Felony" Defined.---The word "felony," as used in the Habitual Criminal Act (2339, 2340 Burns 1926), should be interpreted in the light of 2027 Burns 1926, defining it as any crime or public offense which may be punished with death or imprisonment in the state prison. p. 624.
20. CRIMINAL LAW---Habitual Criminal Act---"Felony" in Foreign Jurisdictions.---The word "felony," used in the Habitual Criminal Act (2339, 2340 Burns 1926), when applied to convictions in foreign jurisdictions, means an offense which may be punished with death or imprisonment in the state prison in the jurisdiction where the conviction was had. p. 624.
21. PARDON---Effect---Constitutional Intention.---A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. p. 624.
22. CONSTITUTIONAL LAW---Constitutional Intention---Determined by Common Law.---The common law determines the constitutional intention as to the force and effect of a pardon. p. 624.
23. CRIMINAL LAW---Habitual Criminal Act---Legislative Intent---As to Effect of Pardon.---The Legislature is deemed to have had in mind the constitutional intention as to the effect of a pardon as defined by the common law in enacting the Habitual Criminal Act. p. 624.
24. CRIMINAL LAW---Habitual Criminal---Former Convictions---Effect of Pardon.---A prior conviction for which a pardon has been granted cannot be invoked to support an habitual criminal charge under 2339, 2340 Burns 1926. p. 624.
25. STATUTES---Penal Statutes---Strict Construction.---Penal Statutes are strictly construed. p. 630.
From Marion Criminal Court; James A. Collins, Judge.
Thomas Jacob Kelley was convicted of forgery, of passing a forged check, and as an habitual criminal, and he appealed.
Reversed.
Fitzpatrick & Fitzpatrick, John T. Walterhouse, Thomas V. Miller, Ed. V. Fitzpatrick and William D. Fitzpatrick, for appellant.
James M. Ogden, Attorney-General, and Earl B. Stroup, Deputy Attorney-General, for the State.
The appellant was indicted in two counts. The first charges that he forged a certain check. The second that he passed a fraudulent check and that he was an habitual criminal. The jury returned verdicts finding the appellant guilty upon both counts. Upon the habitual criminal charge their verdict is as follows:
"And we further find that the said Thomas Jacob Kelley, alias J. W. R. Petri, alias Alexander P. Pousep, alias James Cameron, alias James Ross Petri, on the 17th day of October, 1916, was convicted in the Circuit Court of Delaware County, in the State of Indiana, for the crime of False Pretense and was sentenced to the Indiana Reformatory, a penal institution for a term of not less than one nor more than seven years; and that the said Thomas Jacob Kelley, alias James Ross Cameron, alias C. E. Harris, on the 20th day of December, 1919, was convicted in the United States District Court for the State of Michigan for the crime of conspiracy and was sentenced to the Federal Penitentiary at Leavenworth, Kansas, a penal institution; and that the said Thomas Jacob Kelley, alias James Ross Petri, was on the 12th day of December, 1922, convicted in the County of Bronx, in the State of New York, for the crime of Grand Larceny and that he was sentenced to the State's Prison at Sing Sing, a penal institution in the State of New York, to serve two years and six months."
There was judgment sentencing him to the...
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