214 N.W. 490 | Iowa | 1927
The appellant presents a large number of assigned errors. The most serious question we find presented thereby is that which pertains to the special findings of former convictions. The indictment charged the former convictions to have been had on May 9, 1922, and on March 11, 1924. The State introduced in evidence the records of the Polk County *117 district court, showing convictions on such respective dates of one John Logli. It introduced no proof other than the records themselves of the identity of the present defendant with the defendant named in the former prosecutions. The nearest approach to such proof was the following examination of the witness Hicks. Objections and rulings of the court being omitted, such examination was as follows:
"I don't know exactly where John Logli lived, prior to the place where he now lives. He lived at or near Burwick, through the year 1923 and part of 1924. Q. State, if you know of your own knowledge, whether or not that is the place where he lived when these previous cases arose. A. On one occasion I know it, but not on the other occasion. Q. Which one do you know about? A. The raid in 1923. Q. Do you identify this defendant here as being theman who lived at that place at that time? A. I do.
In State v. Smith,
The instructions of the court herein required the jury to find the identity beyond a reasonable doubt. The jury did so find, even though the evidence in that regard was wholly lacking. We think that the failure of proof at this point was fatal to the special findings. In State v. Merkin, supra, we allowed the general verdict to stand. The sentence imposed in that case, however, was within the permission of the statute as for a first offense. This is not such a case. The punishment inflicted is not permissible as for a first offense. To set aside the special findings is to set aside the penitentiary sentence imposed. *118
The judgment below must, accordingly, be reversed for this reason. — Reversed.
All the justices concur.