State v. Johnson, No. 9186

• Court: Idaho Supreme Court
• Writing for the Court: McQUADE; KNUDSON
• Citation: 86 Idaho 51,383 P.2d 326
• Docket Number: No. 9186
• Decision Date: 25 June 1963
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Douglas C. JOHNSON, Defendant-Appellant.

Page 326

383 P.2d 326 86 Idaho 51 STATE of Idaho, Plaintiff-Respondent,
v.
Douglas C. JOHNSON, Defendant-Appellant. No. 9186. Supreme Court of Idaho. June 25, 1963.

[86 Idaho 52] Ralph H. Jones, Jr., of Jones, Pomeroy & Jones, Pocatello, for appellant.

Allan G. Shepard, Atty. Gen., R. LaVar Marsh, Asst. Atty. Gen., Boise, and Hugh C. Maguire, Jr., Pros. Atty., Bannock County, for respondent.

[86 Idaho 53] McQUADE, Justice.

On October 17, 1961, Douglas C. Johnson, appellant herein, was arrested at Pocatello, Idaho. On the following day a criminal complaint was made, charging appellant with the commission of a felony. The complaint, as amended on November 22, 1961, charged appellant with the crime of forgery and further charged that appellant was a persistent violator of the law. Following[86 Idaho 54] a preliminary hearing, an information was filed in the District Court in Bannock County, Idaho, charging appellant as follows:

Page 327

'* * * DOUGLAS C. JOHNSON is accured by this information of the crime of FORGERY AND BEING A PERSISTENT VIOLATOR which said crime was committed as follows, to-wit: That the said Douglas C. Johnson on or about the 17th day of October, 1961, and before the filing of this information at Pocatello in the County of Bannock, State of Idaho, then and there being, did then and there wilfully and unlawfully, intentionally, feloniously, and with intent to defraud Food King Store, owned and operated by Food King, Inc. an Idaho corporation, Pocatello, Idaho, did attempt to pass and utter as true and genuine to said Food King Store, Pocatello, Idaho, a false and forged check for the payment of money in the sum of Twenty Dollars ($20.00) said check purporting to be the true and genuine check of one Rose Worsencroft, and being in the following words and figures:

TEBE WORSENCROFT ROSE WORSENCROFT

Box 549

No. 9

Pocatello, Idaho, Oct. 17, 1961

PAY TO THE ORDER OF D. C. Johnson $20.00

----- Dollars ----- Cents

IDAHO BANK AND TRUST CO.

Pocatello, Idaho

Rose Worsencroft

whereas in truth and in fact the name of Rose Worsencroft was false and forged and said check was false and forged as the said defendant then and there well knew. That further the said Douglas C. Johnson under the name of Douglas C. Johnson is a persistent violator of the law in that he, the said defendant, was convicted of Forgery, a felony, in Pocatello, Idaho, in September, 1938, and sentenced to the Idaho State Penitentiary; that he, Douglas C. Johnson, under the name of Douglas Johnson, in January, 1947, in Salt Lake City, Utah, was convicted of the crime of robbery, a felony, and was sentenced to the Utah State Penitentiary; that further he, the said defendant, under the name of Douglas Cecil Johnson, in September, 1955, was convicted of the crime of Interstate Transportation of a motor vehicle in the United States District Court, Pocatello, Idaho, and was sentenced to a Federal Penitentiary in McNeil Island, Washington. That further, the said defendant, under the name of Dougals C. Johnson, on the 24th day of January, 1958, out of the Superior Court of the State of Washintgon, County of Pierce, was convicted of the crime of Unlawfully Taking an Automobile Without the Owner's Permission and was sentenced to the Washington State Penitentiary for an indeterminate term of not more than ten years. * * *.'

[86 Idaho 55] On January 3, 1962, appellant filed a demurrer to the information, upon the grounds (1) that more than one offense is charged in said information; (2) that the facts stated do not constitute a public offense under the laws of the State of Idaho; and (3) that the facts alleged concerning the charge of being a persistent violator do not state facts which constitute a public offense. On that same day appellant also filed a motion to quash the information upon the following grounds:

'1. That the defendant, Douglas C. Johnson, has not at the time of the filing of said information been convicted of

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the forgery upon which the persistent violator charge has been predicated.

'2. That said information as filed is prejudicial to defendant's rights guaranteed to him under the Fifth and Fourteenth Amendments of the Constitution and Bill of Rights of the United States of America and the like constitutional rights guaranteed to him by the Constitution of the State of Idaho, and his rights guaranteed to him of a fair and impartial trial.'

Following oral argument on the said motions, the trial court entered an order denying the same.

On January 22, 1962, the Bannock County Prosecuting Attorney filed a motion to strike from the information the following:

'* * * the said Douglas C. Johnson is a persistent violator of the law in that he was convicted of Forgery, a felony, in Pocatello, Idaho in September, 1938, and sentenced to the Idaho State Penitentiary * * *.'

The trial court entered an order striking the following words from the information:

'the said defendant, was convicted of Forgery, a felony, in Pocatello, Idaho, in September, 1938, and sentenced to the Idaho State Penitentiary; that he,'

After the above quoted words were stricken from the information appellant renewed his demurrer to the information and the motion to quash the same upon all grounds stated in the original motions. The trial court denied the motions. Johnson was not rearraigned on the amended information, nor did he enter a plea thereto.

The matter came on for trial on February 20, 1962. Following selection of the jury appellant entered an objection to the information upon the ground that the order of the trial court striking certain words from the information did not conform to the motion made by the prosecuting attorney. Appellant further objected to having the information read to the jury upon the ground that if the jury was informed of his previous convictions, as set forth in the information, such information would be prejudicial to appellant and have the effect of denying him his constitutional right to [86 Idaho 56] a fair trial. These objections were overruled.

At the trial, witnesses testified that appellant entered a grocery store in Pocatello, Idaho, on October 17, 1961, and, after making some purchases, offered to pay for the same with a check in the amount of $20.00 bearing the name of 'Rose Worsencroft' as payor. It was established that appellant informed an employee at the store that the check was executed by Mrs. Worsencroft and was given to him in payment for services performed by him for Mrs. Worsencroft. The appellant did not endorse the check, nor was it ever cashed. Mrs. Worsencroft stated that she had not executed the check, that she did not authorize anyone to execute such a check, and that she did not know the person to whom it was made payable.

The prosecution then sought to prove that appellant had been previously convicted of felonies in other jurisdictions by offering for admission into evidence copies of court records from state courts in Utah and Washington and from the Federal District Court in Idaho. Appellant objected to the admission of such records upon the grounds that the information improperly charged appellant with being a persistent violator of the law because the same was charged in the information as a crime, and because the said records were not properly authenticated. These objections were overruled by the trial court and the records were admitted.

At the conclusion of the evidence the case was submitted to the jury which returned a verdict finding appellant guilty of forgery and a persistent violator of the law.

Thereafter appellant filed a motion for a new trial, contending that the action was prematurely tried in that no plea was made by appellant to the amended information upon which he was tried. Appellant also

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filed a motion to arrest judgment upon the following grounds:

'1. That more than one offense is charged in said information;

'2. That the information does not charge a public offense under the laws of the State of Idaho; and

'3. That the charge of being a persistent violator does not constitute a public offense under the laws of the State of Idaho.'

Said motions were denied, and the trial court entered a judgment of conviction in accordance with the verdict of the jury and ordered appellant to be imprisoned in the Idaho State Penitentiary for an indeterminate term, not to exceed twenty years. This appeal is taken from the judgment and order of the trial court.

Appellant complains that the information is defective in that it charges [86 Idaho 57] him with more than one offense. In the alternative, appellant contends that the information fails to charge him with the commission of an offense and it is therefore defective. More specifically, it is appellant's contention that the wording of the information charging appellant with the crime of 'FORGERY AND BEING A PERSISTENT VIOLATOR' either charges appellant with the commission of two crimes, (1) forgery (2) being a persistent violator, or that it fails to specify a crime because 'there is no such crime as 'forgery and being a persistent violator''. We cannot agree with either construction contended for by appellant.

I.C. § 19-2514 provides as follows:

'Any person convicted for the third time of the commission of a felony, whether the previous convictions were had...