Midland v. State

• Decision Date: 14 January 1943
• Docket Number: No. 27788.,27788.
• Citation: Midland v. State, 220 Ind. 668, 46 N.E.2d 200 (Ind. 1943)
• Parties: MIDLAND v. STATE.
• Court: Indiana Supreme Court

220 Ind. 668

46 N.E.2d 200

MIDLAND

v.STATE.

No. 27788.

Supreme Court of Indiana.

Jan. 14, 1943.

Appeal from St. Joseph Superior Court, No. 2; J. Elmer Peak, judge.

Fred Midland was sentenced to life imprisonment under the habitual criminal statute, and he appeals.

Reversed with instructions.Allen & Allen and J. Chester Allen, all of South Bend, for appellant.

George N. Beamer, Atty. Gen., and Norman Duke, Deputy Atty. Gen., for appellee.

RICHMAN, Chief Justice.

Appellant was sentenced to life imprisonment under the habitual criminal statute, §§ 9-2207 and 9-2208, Burns' 1933, §§ 2343 and 2344, Baldwin's 1934. The second count of the affidavit, upon which he was convicted, attempted to charge two prior convictions, sentences and imprisonments, the first for rape, the second for an offense under the laws of the United States. That part of the affidavit which pertains to the latter offense reads as follows: ‘And Gertrude E. Shenefield, further says upon her oath that Fred Midland, alias Edward J. Novak, alias Harry Zalcman, alias Edward Novak, alias Harold Joseph Miller, alias Harry Hamilton, alias Harry B. Stauffer, was on the 3rd day of January, A.D., 1939, convicted in the District Court of the United States for the Southern District, California Central Division, of a felony, to-wit: obtaining value by pretending to be an officer and employee of the United States of America, and that as a result of, and based on such conviction, said defendant was sentenced by said District Court of the United States for the Southern District, California Central Division, to the United States Penitentiary at _____, in the State of _____, which was then and there a penal institution, for a term of One (1) year and One (1) day, and that in pursuance of said judgment said Fred Midland, alias Edward J. Novak, alias Harry Zalcman, alias Edward Novak, alias Harold Joseph Miller, alias Harry Hamilton, alias Harry B. Stauffer, was imprisoned at the said United States Penitentiary at _____ in the State of _____, in accordance with said sentence, * * *.’

Appellant's motion to quash this count on the ground that it ‘fails to state the alleged offense with sufficient certainty’ was overruled and this ruling is assigned as error. The first sentence of § 9-2208, Burns' 1933, § 2344, Baldwin's 1934, reads: ‘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.’

A permissible grammatical construction of this sentence is that only the felonies need to be described separately. But consideringthe sentence as a whole, its punctuation, the remainder of the act and the fact that life imprisonment is imposed in addition to the separate penalties for each offense, we think the court in Kelley v. State, 1933, 204 Ind. 612, 616, 185 N.E. 453, 455, correctly concluded that, ‘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...