City of Cincinnati v. McKinney
| Decision Date | 14 March 1955 |
| Citation | 101 Ohio App. 511,137 N.E.2d 589 |
| Parties | , 1 O.O.2d 434 CITY OF CINCINNATI, Plaintiff-Appellee, v. Quintella McKINNEY, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Chauncey Pichel and Marie E. Coleman, Cincinnati, for appellant.
Henry M. Bruestle, City Sol. and Robert J. Paul, Asst. City Sol., Cincinnati, for appellee.
The defendant-appellant was convicted of petty larceny on an affidavit filed by Martha M. Furth, charging her with having stolen a shopping bag and contents of the value of $24.42 on the 10th day of February, 1954, and with having been convicted, sentenced, and imprisoned in the Cincinnati, Ohio, workhouse three times previously, and was, therefore, an habitual offender under the provisions of Section 4131 of the General Code, now Section 753.07, Revised Code. One of the prior convictions listed in the affidavit and mittimus in this case was on an affidavit filed by Lillian Nitschke, charging the defendant-appellant herein with petty larceny.
The defendant-appellant was sentenced to imprisonment in the workhouse for a period of three years. It is from that judgment and sentence that this appeal was taken.
(1) It was developed during the proceedings that when the defendant-appellant was convicted of petty larceny on the affidavit of Lillian Nitschke, she was found at that time to be an habitual offender, and a sentence was imposed on her in that character under the habitual offender statute. Counsel by plea of 'autrefois convict' before trial and by objection at the trial raised the legality of using the same offenses as the basis for characterizing the defendant as an habitual offender in prosecution for new offenses thereafter committed.
Section 753.07, Revised Code, is as follows:
There is no claim that the affidavit does not conform to the requirements of the section. It is to its substance and not to its form that objection is made.
We were required in the habeas corpus proceeding of In re Moreno, 83 Ohio App. 54, 82 N.E.2d 325, to consider Section 4131, General Code, now section 753.07, Revised Code, in order to determine the legality of imprisonment based on an affidavit charging that the accused was guilty of being an habitual criminal. We stated in the third paragraph of the syllabus as the unanimous opinion of the Court that:
'Section 4131, General Code, does not create a separate, distinct crime, for which one may be sentenced to the workhouse but, on the contrary, merely attaches an additional penalty to the commission of a misdemeanor, where the perpetrator thereof has been three times previously convicted of misdemeanors and sentenced to the workhouse.'
As Section 753.07, R.C., creates no crime, it is obvious that a plea of autrefois convict can not be postulated upon prosecution for a totally different crime in which prior convictions are resorted to for the sole purpose of determining the extent of the punishment. It has always been the practice of courts to hear evidence of prior good or bad conduct to determine the extent of the punishment. This statute is simply a recognition of the soundness of such practice.
In Jones v. State of Oklahoma, 9 Okl. Cr. 646, 133 P. 249, 48 L.R.A.,N.S., 204, it was held, as stated in the syllabus that:
'The act of the Legislature providing that upon a second conviction for a violation of the prohibitory liquor law a higher punishment shall be inflicted is a reasonable classification which the Legislature had the power to make, and it is not ex post facto, although by its terms it may be enforced against one whose former conviction occurred before its passage.'
See, also, Graham v. State of West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917, and 25 Am.Jur. 264.
The contention made in this case was considered and held unsound in the case of, State of West Virginia v. Lawson, 125 W.Va. 1, 22 S.E.2d 643, 144 A.L.R. 235. The holding of the court is clearly stated in the third paragraph of the syllabus, which we quote:
'Acquittal of a charge under an indictment which, for purposes of habitual criminal law, charged former convictions does not operate as a bar against charging those same former convictions in a subsequent indictment for a different substantive offense; the former convictions have no connection with the offense for which the defendant is on trial except to determine his punishment in the event that he is found guilty, and there is therefore no question of former jeopardy in respect to those convictions.'
We, therefore, hold that the court did not err in...
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