Sammons v. State

• Decision Date: 04 February 1936
• Docket Number: No. 26475.,26475.
• Citation: 210 Ind. 40,199 N.E. 555
• Parties: SAMMONS v. STATE.
• Court: Indiana Supreme Court

210 Ind. 40

199 N.E. 555

SAMMONS

v.STATE.

No. 26475.

Supreme Court of Indiana.

Feb. 4, 1936.

James Sammons was convicted of bribery and found to have been previously convicted of felonies, and he appeals.

Affirmed.

Appeal from Criminal Court, Lake County; Wm. J. Murray, Judge.

Joseph H. Conroy, of Hammond, for appellant.

Philip Lutz, Jr., Atty. Gen., and Joseph McNamara, Deputy Atty. Gen., for the State.

TREMAIN, Judge.

This is an appeal from a judgment of the criminal court of Lake county on a verdict of the jury finding the appellant guilty of the crime of bribery, and further finding that prior to the commission of the offense of bribery, he had been twice convicted, sentenced, and imprisoned in penal institutions for the commission of felonies. Upon the verdict of the jury, the court rendered judgment that the appellant be imprisoned in the Indiana State Prison for not less than two nor more than fourteen years, and fined in the sum of $100. The court, on the finding of the jury that appellant had theretofore been twice convicted and imprisoned for the commission of felonies, entered judgment that he be imprisoned in the Indiana State Prison for and during the remainder of his life as an habitual criminal.

On appeal the appellant has assigned as errors the overruling of his motion to quash the affidavit and the overruling of his motion for a new trial. As to the overruling of the motion to quash the affidavit, the appellant, in his brief, expressly waived that assignment of error.

One ground presented in the motion for a new trial as error is the court's refusal to grant the appellant a change of venue from the county. The affidavit for the change is founded upon excitement and prejudice in the county against him, as provided in section 9-1305, Burns' 1933, Baldwin 1934, § 2226, which provides that in all cases not punishable by death, it is within the discretion of the court as to whether or not a change of venue from the county may be granted. The appellant concedes that the abuse of the discretion must appear affirmatively, and if the evidence is disputed, this court will not pass upon its weight. Appellant takes the position that since the charge against him is the bribery of a deputy sheriff and that wide publicity had been given to the case by the newspapers of Lake county, the change should have been granted, and that it was an abuse of the discretion of the trial court in not granting it. The record discloses that more than twenty affidavits of citizens of Lake county were filed showing, or tending to show, that there was no excitement or prejudice in the county against the appellant. Upon the facts submitted to the court, the motion was denied. This court is not in a position to weigh the evidence or to say that the trial court abused its discretion.

Our courts have held uniformly that it is within the discretion of the trial court to grant or refuse to grant a change of venue from the county in cases where the punishment cannot be death, and the action of the trial court will not be reversed on appeal unless there is an abuse of discretion. Hinkle v. State (1910) 174 Ind. 276, 91 N. E. 1090;Leach v. State (1912) 177 Ind. 234, 97 N. E. 792;Smith v. State (1917) 186 Ind. 252, 115 N. E. 943;Hinshaw v. State (1919) 188 Ind. 447, 124 N. E. 458;Burns v. State (1922) 192 Ind. 427, 136 N. E. 857;Pindell v. State (1925) 196 Ind. 175, 147 N. E. 711;Scheerer v. State (1925) 197 Ind. 155, 149 N. E. 892;Pontarelli v. State (1931) 203 Ind. 146, 176 N. E. 696;Chizum v. State (1932) 203 Ind. 450, 180 N. E. 674;Ramsey v. State (1932) 204 Ind. 212, 183 N. E. 648.

To say the least, the evidence on the application for a change of venue was conflicting. In such case the question is not reviewable on appeal. Smith v. State (1896) 145 Ind. 176, 42 N. E. 1019;Masterson v. State (1896) 144 Ind. 240, 43 N. E. 138;Bissot v. State (1876) 53 Ind. 408.

The ruling of the trial court on a motion for a change of venue, as to the existence of excitement and prejudice upon conflicting evidence, is a determination of an issue of fact, and is conclusive on appeal. Scheerer v. State, supra; Hinshaw v. State, supra.

It is next contended by the appellant that since it is charged in the affidavit that he had been four times convicted of a felony and sentenced and imprisoned in penal institutions within the limits of the United States, it was necessary for the state to prove by competent evidence all four of such sentences and imprisonments, and it is contended that proof of only two of such sentences and imprisonments will be sufficient under section 9-2207, Burns' 1933, Baldwin 1934, § 2343, defining an habitual criminal and providing for a life sentence in such case. It is conceded by appellant that the evidence is sufficient to establish two of the former convictions, sentences, and imprisonments in the state of Illinois. The court has examined the proof as disclosed by the records given at the trials of said two former convictions. It is found to be conclusive and uncontradicted, and there could be no doubt in the minds of the jury that this appellant had been twice convicted, sentenced, and imprisoned on felony charges.

As to the other two, appellant contends that the proof is not sufficient for the reason that the records are not sufficiently authenticated as provided by law; that therefore it was reversible error to admit them in evidence over the objection of appellant. It may be conceded that the authentications are not in due form, but at the trial, in addition to the purported authentications of the records of the two convictions in question, officers of both the courts and the prisons testified in person. The court officers stated that they were present at the trials, saw the appellant, and knew him, that he was the same person on trial on the charge herein, and that he was convicted and sentenced to prison on a felony charge in each case. The prison officials identified him as the same person who served the sentence in the prisons under such convictions. This proof was sufficient to identify the appellant as the one convicted, sentenced, and imprisoned under said former charges. No error is predicated upon the testimony of the prison and court officials. The purported authenticated records afforded corroborative and accumulative proof, not required to establish said convictions in view of the other evidence. No reversible error was committed in admittingthe authenticated records. Massachusetts, etc., Ins. Co. v. State ex rel. (1921) 191 Ind. 595, 608, 131 N.E. 398. The question is raised as to the necessity of the state to prove more prior convictions than the statute requires,regardless of the number alleged in the affidavit or indictment. The statute provides that, ‘Every person who, after having been twice convicted, sentenced and imprisoned in some penal institution for felony,’ shall be convicted in any circuit or criminal court of this state for a felony committed, shall be termed an habitual criminal and shall be imprisoned in the state prison for life. The verdict of the jury expressly stated that the appellant had been twice previously convicted, sentenced, and imprisoned.

This court has not been called upon prior to this time to pass upon the precise question here presented.

Courts of other states, which have habitual criminal statutes, have had occasion to pass upon the question, and have held that indictments may charge more prior convictions than are required by law to be proved, and that in such cases it is necessary to prove only the number required by the habitual criminal statute. Newton v. Commonwealth (1844) 8 Metc. (Mass.) 535; State v. Patterson (1916) 98 Kan. 197, 157 P. 437;Commonwealth v. Payne (1913) 242 Pa. 394, 89 A. 559;Iowa v. Jones (D. C. 1904) 128 F. 626, 630;People v. Fegelli (1914) 163 App. Div. 576, 148 N. Y. S. 979, 981;Barr v. State (1933) 205 Ind. 481, 187 N. E. 259;Evans v. State (1898) 150 Ind. 651, 50 N. E. 820; also, see Annotation, ...