Kelley v. State, 25907.

• Decision Date: 28 April 1933
• Docket Number: No. 25907.,25907.
• Citation: 185 N.E. 453,204 Ind. 612
• Parties: KELLEY v. STATE.
• Court: Indiana Supreme Court

204 Ind. 612

185 N.E. 453

KELLEY

v.STATE.

No. 25907.

Supreme Court of Indiana.

April 28, 1933.

Appeal from Criminal Court, Marion County; James A. Collins, Judge.

Thomas Jacob Kelley was convicted of forging a certain check, and passing a fraudulent check, as habitual criminal, and he appeals.

Reversed, with instructions.Fitzpatrick & Fitzpatrick, of Indianapolis, for appellant.

James M. Ogden, Atty. Gen., and Earl B. Stroup, Asst. Atty. Gen., for the State.

FANSLER, Judge.

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 Camerson, 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 a judgment sentencing him to the Indiana State Prison for two to fourteen years under the forgery count, from one to five years on the fraudulent check count, and for life as an habitual criminal.

The sections of the statute concerning habitual criminals are as follows:

“2339 [Burns' 1926]. 1. Every person who, after having been twice convicted, sentenced and imprisoned in some penal institution for felony, whether committed heretofore or hereafter, and whether committed in this state or elsewhere within the limits of the United States of America, shall be convicted in any circuit or criminal court in this state for a felony hereafter committed, shall be deemed and taken to be an habitual criminal, and he or she shall be sentenced to imprisonment in the state prison for and during his or her life.

“2340 [Burns' 1926]. 2. 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. If the trial jury, in their verdict, find these facts to be true, and convict such defendant of the third felony, the trial court, after passing sentence of imprisonment for a specific term, as prescribed by the statute, shall proceed to sentence the defendant to imprisonment for his or her life.”

To authorize a life sentence, the previous convictions, sentences, and imprisonments must be described specifically, and the jury must find that the defendant was convicted, sentenced, and imprisoned in the instances described, and not otherwise.

This legislative intent is clear, and was evidently understood by the state when the indictment was drawn. The verdict of the jury follows the exact language of the habitual criminal portion of the indictment.

The state sought to prove the prior convictions by certified transcripts of the respective judgments, which was proper if the defendant was identified as the person against whom the judgments were had.

Exhibit No. 5 is a certified transcript of a judgment of the Delaware circuit court of Indiana in the case of the State of Indiana v. Alexander Pousep. The indictment is not included in the exhibit, and the judgment does not describe the crime for which he was convicted, but merely recites: “It is therefore considered, adjudged and decreed by the Court that the said defendant, Alexander Pousep, Jr. for the offense by him committed be and he is hereby committed to the custody of the Board of Trustees of the Indiana Reformatory, to be confined by them according to law for a period of not less than one year nor more than seven years.”

There was no other competent evidence upon the subject, and the exhibit wholly fails to show that Alexander Pousep was convicted of the crime of false pretense as alleged in the indictment.

Exhibit No. 7 is a certified copy of a judgment and indictment of the District Court of the United States for the Eastern District of Michigan, Southern Division, against James Ross Cameron, alias C. E. Harris, and Clarence T. Strom. The indictment is in three counts, charging larceny, forgery, and the uttering and publishing of counterfeit money. The defendants entered a plea of guilty, and were sentenced for the crimes charged in the indictment. There was no other evidence of any other or different conviction in said court. The exhibit wholly fails to show a conviction for conspiracy, as alleged in the indictment and found in the verdict.

Exhibit No. 8 is a certified transcript of an indictment in three counts returned in the Supreme Court of the county of Bronx, in the state of New York, against James Ross Petrie, charging grand larceny in the second degree. The transcript does not contain a copy of any judgment that may have been entered. There is a memorandum on the back of the indictment in these words: “Dec. 12th, 1922. Sentenced to State Prison for not less than 1 year 6 months, nor more than 4 years 6 months. L. D. G. County Judge.” And another, in these words: “Dec. 12th, 1922. Sentenced to States' Prison For 2 Yrs. & 6 Mos. L. D. G. County Judge.” Who placed the memoranda on the back of the indictment is not shown, nor is there any reference to any judgment roll or judgment record.

Even if it be conceded that Exhibit No. 8 sufficiently shows a judgment of conviction of grand larceny, Exhibits Nos. 5 and 7 do not show convictions of false pretense and conspiracy as found in the verdict, and there is proof of only one of the convictions charged where two are necessary to sustain the verdict and authorize judgment of life imprisonment.

And, in addition to this failure of evidence, there was a complete failure to identify the appellant as the defendant referred to in the various judgments. Certain photographs were admitted in evidence upon testimony of a Bertillon expert that they were photographs of the appellant, but there was no evidence that they were photographs of the Alexander Pousep convicted in the Delaware circuit court, or of the James Ross Cameron, alias C. E. Harris, convicted in the United States District Court, or of the James Ross Petrie convicted in the state of New York. It is true that each of the photographs bore one of the names referred to, together with printed statements describing the subject as a criminal; and witnesses testified that the photographs were obtained from the Indiana Reformatory at Pendleton, the police department of New York City, and a detective magazine, respectively. Who provided the names and the information on the photographs, and the source of the information, is not shown. It may be that this information came from the same source as the information upon which the indictment was drawn. This evidently was to the effect that the conviction in the district court was for conspiracy, which was incorrect and unreliable. At most, it was hearsay, unsworn to. These photograph exhibits furnish no legal evidence that the appellant was the same person referred to in the judgments. The Attorney General concedes that these exhibits would be hearsay standing alone and without explanatory evidence, but contends that the witness John Gaughn, a police officer, testified to admissions made to him by the appellant which identifies him as the defendant against whom the three judgments were had. If this were true, it would not help the exhibits or cure the error. Certain of Gaughan's testimony is set out in the brief. We have examined this testimony, and the entire testimony of the witness as shown by the record, and find no evidence of any such admission. The evidence shows that appellant denied having gone by, or being known under, the names referred to. He did admit that he had been convicted in a federal court and served time in Leavenworth, and that he had been convicted in New York state and had served time there. This is not sufficient.

We cannot say that all of this incompetent evidence did not affect the jury in its determination of the guilt or innocence of the defendant in the principal cases on trial.

The Alexander Pousep referred to in the judgment of the Delaware circuit court was pardoned. This pardon was introduced in evidence by the appellant. It is contended by the appellee that “the pardon itself is sufficient evidence of his conviction in the Delaware Circuit Court and his serving the sentence.” The pardon is evidence that Alexander Pousep was convicted and pardoned. It is not evidence that the appellant is Alexander Pousep. The appellant objected to the admission of the record of the judgment, for the reason that he had not been identified as the person involved. He offered the pardon in evidence upon the theory that the pardon wiped out the conviction. It was introduced upon the assumption that the court's ruling on the admissibility of the record of the judgment was correct, and in an effort to avoid its effect. If the record had not been admitted without first identifying him as the judgment defendant, he would have had no occasion to introduce the pardon. We cannot see...