State v. Smith
| Decision Date | 15 February 1906 |
| Citation | 106 N.W. 187,129 Iowa 709 |
| Parties | STATE OF IOWA, Appellee, v. JOHN SMITH, Appellant |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.--HON. W. G. THOMPSON, Judge.
THE defendant was indicted for the crime of larceny from a building in the nighttime, and, from the judgment had upon trial, he appeals.
Reversed.
Barnes & Chamberlain and Tom H. Milner, for appellant.
Chas W. Mullan, Attorney General, and Lawrence De Graff, Assistant Attorney General, for the State.
OPINION
With the manifest purpose of bringing the case within the operation of the provisions of chapter 109, Acts 27th General Assembly, it was alleged in the indictment, in addition to charging the facts of the instant crime, that on the 19th day of November, 1887, a judgment was rendered against the defendant, John Smith, under the name of John A. Smith, in the district court of Linn county, this State, for the crime of burglary; that on the 19th day of October, 1901, another judgment was rendered against the defendant, John Smith, in the district court of Linn county, for the crime of breaking and entering a dwelling house in the daytime. Section 1 of said chapter reads as follows:
Whenever any person has been twice convicted of either of the crimes of burglary, . . . larceny where the value of the property stolen exceeded twenty dollars, or of breaking and entering with intent, . . . or has been convicted of two or more of said crimes, and shall thereafter be convicted of any one of such crimes, committed after such second conviction, he shall be imprisoned in the penitentiary for any term not less than fifteen years, provided such former judgments shall be referred to in the indictment stating the court, date and place of rendition.
Section 3 provides that an authenticated copy of the record of a former judgment shall be prima facie evidence of such conviction and may be used in evidence against the defendant. Section 4 requires that the jury, if it finds the defendant guilty, "must also find and determine specially whether the defendant had previously been convicted of either of the crimes referred to in the indictment, and the number of times so convicted."
Upon the instant trial, the State offered in evidence, and, over the objection of defendant, there was admitted, the criminal record of the district court of Linn county, this State, as of date November 19, 1887, which recited that in the case of the State of Iowa against John A. Smith, then pending in said court, the defendant so named having been indicted and convicted of the crime of burglary, it was ordered and adjudged that he be confined in the penitentiary for the period of three years. In the same way there was admitted in evidence the criminal record of said district court as of date October 19, 1901, which recited that in the case of the State of Iowa against John Smith, pending in said court, the defendant so named having been indicted for the crime of larceny, and having pleaded guilty, it was ordered and adjudged that he be confined in the penitentiary for the period of three years. It is contended that the admission in evidence of such records was error. The objection presented to the court below was based upon several grounds, but we need notice only those that are insisted upon in argument in this court.
In the first place, it is said that the evidence was improper because of a variance between the language of the statute and that used in the indictment; that is, that the statute speaks of former convictions, whereas the indictment refers to former judgments. The point is devoid of merit. We need not stop to inquire whether by strict rule a different meaning is to be attached to the words "conviction" and "judgment," It is certain that in common parlance the words are used interchangeably, and this is done in the statute in question. Thus, while in the language thereof former convictions are made the basis for an extended term of imprisonment, it is provided that "such former judgments shall be referred to in the indictment."
Secondly, it is urged that the court erred in permitting the records of the former judgments to be read because there was no evidence tending to identify the defendant on trial as the person against whom such judgments were made and entered. As we think, the objection on that ground went only to the order of proof, and was not well taken. Questions as to the order of proof are addressed to the sound discretion of the court, and it was not error, as counsel seem to think, to admit the records, competent in themselves, because, looking backward over the record after the State had rested its case, it became apparent that no proof of identity had been attempted. If counsel for defendant desired to save the point, it was for them to invoke a further ruling of the court by appropriate motion, and, having failed to do so, defendant is not in position to complain.
II. No attempt was made by the State to identify the defendant on trial as the defendant in the former judgments referred to in the indictment and in the records introduced. The county attorney seems to have pinned his faith to the idea that if he could point out to the court that at some other time, and in the same or some other court, a man by the name of Smith had been the subject of a judgment in a criminal prosecution, the identity of the defendant on trial, as the person named defendant in such former judgment, was sufficiently established; and, there being two or more of such judgments, an application of the statute in question was fully warranted. It is manifest, to our minds, on reason and authority, that such conclusion cannot be sustained. It does not require a second reading of the statute to make clear its purpose, and we need not stop to enlarge upon that. And similar statutes are in force in nearly, if not quite all, the states in the Union, as well as in England and elsewhere. By the uniform current of authority, the fact of the prior convictions is to be taken as part of the offense instantly charged, at least to the extent of aggravating it and authorizing an increased punishment. 12 Cyc. page 950, and note. Among other cases cited in the note are these: Evans v. State, 150 Ind. 651, (50 N.E. 820); Com. v. Harrington, 130 Mass. 35; People v. Sickles, 156 N.Y. 541, (51 N.E. 288); Wood v. People, 53 N.Y. 511; Gibson v. People, 5 Hun 542; Bandy v. Hehn, 10 Wyo. 167 (67 P. 979).
Now, as it will be observed, the statute requires that the fact of former convictions shall be set forth in the indictment. And this but conforms to the general rule governing criminal procedure. 10 Encyclopedia Pleading & Practice, page 489; Maguire v. State, 47 Md. 485. And it is former convictions of the instant defendant that is required to be alleged; not merely that a man passing under the name to which he answers has been the subject of convictions. The plea of not guilty puts in issue, not only all matters of fact essential to the instant crime, but the fact of the alleged former convictions of the defendant. 12 Cyc. p. 951, and cases in note; Hughes, Criminal Law & Procedure, section 2831.
Moreover, as we have seen, the statute requires a special finding at the hands of the jury as to the fact of such former convictions and the number thereof. It ought not to require the citation of authority to make it clear that a finding of fact, thus made imperative, could only be had upon evidence tending to proof. And it is not conceivable, as matter of criminal law, that, to avoid an adverse finding, a defendant can be held to take the initiative and bring forward the evidence tending to his exculpation in respect of any fact alleged in the indictment and material to his conviction or punishment. It is well enough, and for obvious reasons, that an accused who places his reliance for acquittal, as against a prima facie case made out against him, upon affirmative matter of defense, or who seeks to bring himself within an excepted class, should be held to bring forward the requisite proof, but there is no theory upon which the principle there involved can be given application here. In addition to a conviction for the crime instantly charged, the state is seeking to have an unusual punishment inflicted because of former convictions of similar offenses. As the plea of the defendant is given effect to traverse every allegation of the indictment, the state must carry the burden to make good the charge in its every essential particular. 12 Cyc. page 951, and note.
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 a conclusion. The matter for the jury to determine is the historical fact involved in the charge, and this they must determine as any other fact in the case. Our conclusion finds warrant in the following authorities: Hines v. State, 26 Ga. 614; State v. Lashus, 79 Me. 504 (11 A. 180); State v. Adams, 64...
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