Minton v. State

• Decision Date: 04 March 1966
• Docket Number: No. 30655,30655
• Citation: 214 N.E.2d 380,247 Ind. 307
• Parties: Ruby C. MINTON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 380

214 N.E.2d 380

247 Ind. 307

Ruby C. MINTON, Appellant, v. STATE of Indiana, Appellee.

No. 30655.

Supreme Court of Indiana.

March 4, 1966.

Hugh R. Couch, Martinsville, for appellant.

Edwin K. Steers, Atty. Gen., Carl E. Van Dorn, Asst. Atty. Gen., for appellee.

RAKESTRAW, Judge.

In view of the questions raised on this appeal, it seems advisable to present a brief summary of the evidence most favorable to the state. Witness Paul Ray was approached by the appellant, who offered to sell him some codeine tablets. They arranged to meet at a specific rendezvous at a certain time. The witness then went to the Indianapolis Police Department. They advised him to go through with the rendezvous. Prior to his keeping the rendezvous the police searched his person and car thoroughly, arranged for observation by police cars, and instructed him to drive with his lights out so they would have an excuse for stopping his automobile. The witness Ray kept the rendezvous with the appellant.

The appellant then motioned a Mr. Neusbaum to come out of the bushes, and Mr. Neusbaum came. The appellant and Mr. Neusbaum got in the automobile of the witness Ray. The witness Ray's automobile was stopped by the police, and when the car was stopped, Mr. Neusbaum put a pink Kleenex under the right hand side of the front seat. On searching the car, the police discovered the pink Kleenex in which the codeine tablets were wrapped.

The appellant was charged by affidavit in two counts of violation of the Indiana narcotic laws. The first count of the affidavit alleged that the defendant had in his possession 200-1 grain tablets of codeine sulphate when he was not authorized by any law of the United States of America or of the State of Indiana to have such drug in his possession, and further charged that he had previously been convicted of a violation of the narcotic laws of the United States of America, in the United States District Court for the Southern District of Indiana. Court Two of the affidavit merely alleged the unlawful possession of the narcotic. After a jury trial, the defendant was found guilty on Count One of the affidavit, and sentenced to the Indiana State Prison for not less than 20 years nor more than life.

Count One of the affidavit in this cause was based on Burns' Ind.Stat.Anno. Sec. 10-3538 (1965 Supp.), which reads as follows:

'(b) Any person who shall possess or have under his control any narcotic drug with intent to barter or exchange with, or to sell, give or dispense, to any other person, the same or any part thereof, or to aid, abet, or directly or indirectly counsel, command, induce or procure the barter or exchange with the sale or gift to any other person the same or any part thereof, in violation of any section of this act, shall upon conviction, be fined not more than two thousand dollars [$2,000.00] and be imprisoned in the state prison not less than five nor more than twenty years. For a second or subsequent offense, or if, in case of a first conviction the offender shall previously have been convicted of manufacturing, selling, possessing, prescribing administering, dispensing, compounding or soliciting any other person to manufacture, sell, prescribe, administer, dispense or compound any narcotic drugs in violation of the laws of the United States or of any other state, territory or district, the offender shall be fined not more than five thousand dollars [$5,000.00] and be imprisoned in the state prison not less than twenty years nor more than life.' [Acts 1961, ch. 90, Sec. 5, p. 169.]

At the trial, the appellant objected to the Court's preliminary Instruction No. 2, which read to the jury Court One of the affidavit setting forth the allegation that the defendant had previously been convicted of violation of the narcotic laws; Court's Final Instruction No. 24, which incorporated the statute above set forth, and Court's Instruction No. 29, which is the final instruction incorporating directions as to verdict, and referring to Count One of the affidavit.

The basis of the objection to these instructions is that the matter of a former conviction should not have been conveyed to the jury by the reading of the affidavit or the statute or by the reference to Count One of the affidavit until after the appellant's guilt or innocence was determined with respect to the charge made in this case. The appellant maintains that in order to have a fair trial, the evidence should have been presented without any reference to a previous conviction until the guilt or innocence of the appellant was determined on the act of possessing narcotics. The appellant cites one case from Connecticut and another case from Idaho in which the procedure in those states is described as submitting to the jury first the issue of guilt on the specific offense, with the matter of previous conviction remaining in abeyance until that determination is made. The appellant argues that to do otherwise is a violation of Art. 1, Sec. 12 of the Indiana Constitution. The appellant does not say so, but apparently he is relying on the 'due course of law' clause.

It has long been established in this state that when a statute imposes a greater punishment upon a second and subsequent conviction of an offense, the former conviction must be alleged in the affidavit or indictment, and proved at the trial. Evans v. The State (1898), 150 Ind. 651, 50 N.E. 820.

This doctrine has been held to apply to the habitual criminal area. Barr v. State (1933), 205 Ind. 481, 187 N.E. 259.

It has also been held applicable to driving 'while under the influence' of intoxicating liquor, where the statute provides for an increased penalty on a second or subsequent conviction. Buchta v. State (1955), 234 Ind. 295, 126 N.E.2d 151.

However, even if the law were not so well settled in this state, the appellant is not now in a position to raise this question. There is no indication that the appellant objected to the admission of testimony of previous offenses. The appellant did not make this objection to State's Exhibit No. 4, which was a certification of his conviction in Federal Court of a violation of the Narcotic Acts. In addition, the appellant took the witness stand and became a witness in this case. The appellant was asked about previous convictions and testified about not only this conviction, but other convictions of felonies. Such questioning was obviously proper, and was not objected to. Under this state of the record, the appellant is in no position to say that the court should not bring up the matter of a previous conviction by reading an indictment or by reading a statute.

The appellant also maintains that it was error to give State's Instruction No. 1. State's Instruction No. 1 reads as follows:

'While the Constitution of this State makes the Jurors the judges of the law as well as of the facts, this does not mean that the Jurors may wilfully and arbitrarily disregard the law. It means that Jurors under their oaths should honestly justly and impartially judge the law as it exists. It does not mean that Jurors may not judge the law in any case so as to make it null and void and of no force but that they shall so judge the law as to give it a fair and honest interpretation, to the end that the law in each and every case may be fairly and honestly enforced.

'The facts must be judged and found by the jury from a careful consideration of all the testimony given by the witnesses in the case and under your oaths you have...