State v. McCarty, 39741.

• Decision Date: 14 April 1930
• Docket Number: No. 39741.,39741.
• Citation: 210 Iowa 173,230 N.W. 379
• Parties: STATE v. MCCARTY.
• Court: Iowa Supreme Court

210 Iowa 173

230 N.W. 379

STATE

v.MCCARTY.

No. 39741.

Supreme Court of Iowa.

April 14, 1930.

Appeal from District Court, Webster County; T. G. Garfield, Judge.

The defendant was indicted, tried, and convicted of larceny of property over $20 in value, to wit, a radio apparatus. He was sentenced to the state penitentiary at Ft. Madison for a period not to exceed 25 years, from which conviction he appeals.

Reversed and remanded.

E. H. Johnson, of Ft. Dodge, for appellant.

John Fletcher, Atty. Gen., and Neill Garrett, Asst. Atty. Gen., for the State.

ALBERT, J.

The indictment in this case, after reciting the usual allegations of a charge of this kind, further recites that under section 13400, Code 1927, the offense charged is subsequent to two prior convictions for felony as follows: On January 26, 1920, defendant was convicted and sentenced for an indeterminate period not exceeding 15 years in the Webster county district court of the crime of uttering a forged instrument; also on November 19, 1924, he was convicted in Cerro Gordo county district court of the crime of larceny, and sentenced to the penitentiary for a term not exceeding 5 years. The court submitted the question of these former convictions to the jury, and, in answer to special interrogatories, the jury found that the defendant was the same person who had been convicted in Webster and Cerro Gordo county district courts as above set out.

It may be noted in passing that in the certified record from Webster and Cerro Gordo counties the defendant is named “Clem McCarthy.” We have held such a difference in the spelling of the name “McCarty” and “McCarthy” to be immaterial. State v. Merkin, 198 Iowa, 900, 200 N. W. 437. We have also held that identity of name under such circumstances alone is not a sufficient identification of the defendant as the same person who was defendant in a former conviction to carry the question to the jury. State v. Smith, 129 Iowa, 709, 106 N. W. 187, 189, 4 L. R. A. (N. S.) 539, 6 Ann. Cas. 1023; State v. Merkin, supra; State v. Logli, 204 Iowa, 116, 214 N. W. 490;State v. Lambertti, 204 Iowa, 670, 215 N. W. 752;State v. Parsons, 206 Iowa, 390, 220 N. W. 328.

In the Smith Case, supra, we said: “The statute provides for the introduction of authenticated copies of the judgments alleged in proof prima facie thereof. But the state may not stop there. The identity of the defendant as the person who suffered such former convictions remains to be proven. We grant that the identity of names may be some evidence of the identity of persons; but, standing alone, it is not enough. Every fact essential to the infliction of legal punishment upon a human being must be proven beyond a reasonable doubt. And it would amount to a travesty to say that a prima facie case for an increased term of punishment could be made out against John Smith, being tried in Linn county, by showing the isolated facts that a man passing under that name had at some time or other been convicted in the courts of Lee county, likewise in Lyon county. And the almost unbroken voice of authority is against such conclusion.”

Turning now to the record in the case before us, the question at this point is: Was there sufficient identification of the defendant to take the question of former convictions to the jury?

[1][2] The court, under authority of State v. Smith, supra, rightfully instructed the jury that the burden was upon the state to prove each of the former convictions beyond a reasonable doubt. The state attempted to supply this necessary evidence by the testimony of the sheriff of Webster county. He did not, from his personal knowledge, identify the man on trial as the Clem McCarty who was convicted in Webster district court on a charge of uttering a forged instrument, but testifies to a conversation with the defendant concerning former convictions, which is as follows: “Well, as I remember, I asked him (the defendant) something about the time he spent down at Ft. Madison on other convictions. I think I asked him something about when he was down there the first time, the other time. I didn't ask him because I seen him there different times when I would be there. I knew he was there. Well, he told me he was sent from Ft. Dodge, from here, the first time. He said it was on a charge of forgery. He said he was sentenced for 15 years.”

The indictment charged as one of his former convictions a sentence from Webster county for uttering a forged instrument. If we should give full force to this as an admission, it would not be sufficient to fill the requirements of the statute in this respect. When a charge of a former conviction of this kind is made, the admission of the defendant to a witness that he was convicted at the time and place and for the crime charged in the indictment would be held to make a prima facie case for the state, but what was admitted by the defendant here to the sheriff in no way measures up to this requirement. This being true, the state failed to make out a prima facie showing of the former conviction in Webster county, and without that there could be no rightful conviction under the Habitual Criminal Act.

[3] II. The court in its instructions told the jury that, if it found the defendant guilty, it should fix the value of the property stolen, and also submit a special interrogatory as follows: “Do you find that...