Ex parte Hill, 14137.
| Decision Date | 04 October 1937 |
| Docket Number | 14137. |
| Citation | 72 P.2d 471,101 Colo. 243 |
| Parties | Ex parte HILL. v. BEST. HILL |
| Court | Colorado Supreme Court |
Original proceeding in the matter of the application of James C. Hill for a writ of habeas corpus by Opal Hill against Roy Best Warden of the State Penitentiary, wherein the Attorney General appeared and demurred.
Demurrer sustained and petition dismissed.
Stevens Park Kinney, of Denver, for petitioner.
Byron G. Rogers, Atty. Gen., and Reid Williams, Asst. Atty. Gen for respondent.
Original proceedings in habeas corpus by Opal Hill, who alleges that one James C. Hill is unlawfully imprisoned and restrained of his liberty by Roy Best, Warden of the Colorado State Penitentiary at Canon City. The petition further alleges that the said James C. Hill was informed against in the county of Delta, by the district attorney of the Seventh judicial district in October, 1933, on two counts; the first charging burglary, and the second larceny, to which information and each of the counts thereof the said James C. Hill interposed a plea of not guilty. He was subsequently tried by a jury and by separate verdicts found guilty of each of the crimes charged, and was thereafter sentenced for a period of not less than five years nor more than eight years on the burglary count, and not less than eight years nor more than ten years on the larceny count, the sentences to run consecutively and not concurrently. The petition asserts that the said James C. Hill has now served the sentence first imposed under the burglary count and that his continued imprisonment and incarceration under the second count is illegal, in that the judgment imposes a second sentence for one continuous criminal act and that in so sentencing him the district court exceeded its jurisdiction and violated the constitutional rights of the said James C. Hill by placing him in double jeopardy. Article 2, section 18, Constitution.
As required by previous order of this court, the petitioner served a copy of the petition on the Attorney General, who has appeared and filed a general and special demurrer to the petition.
It is to be observed that the petition affirmatively shows that Hill has served only the lesser of the sentences imposed by the court and has not completed the minimum term for the greater sentence. Under this state of the record the demurrer could undoubtedly be properly sustained under the authority of Perry et al. v. People, 38 Colo. 23, 87 P. 796 but, under the circumstances of the case and the fact that another petition likely would be filed when the minimum term under the heavier sentence is served, we deem it advisable to express our views upon the merits of the contention of the petitioner.
The petition, which must be taken as true in considering the Attorney General's demurrer, asserts that the evidence in the original proceeding was to the effect that the prisoner broke into a storehouse and stole therefrom the personal property described in the larceny charge. It is said that the entire criminal action was one continuous move and took but a few moments to perform. On this premise the petition asserts, as we have indicated, that a person may not be twice tried for the same offense nor may he be adjudged guilty of two crimes arising from one act. The whole matter, therefore, concededly turns upon the question of whether burglary and larceny perpetrated in one continuous course of action are separate offenses for which the perpetrator may be independently convicted and sentenced.
There can be no doubt that in the case at bar the defendant might have been convicted for the offense of burglary without being convicted for the offense of larceny or vice versa. There is also no question that the two charges could properly be joined in one information. This the petitioner concedes, but insists that even though the convictions for the two offenses mentioned were upon separate counts and under separate verdicts, that the perpetrator could still be punished only by one sentence. With this contention we cannot concur.
While the matter is one of first impression in this court, the question has been decisively settled by the Supreme Court of the United States in the case of Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 714, 59 L.Ed. 1153, where it was held that persons who steal postage stamps and postal funds from a post office after having burglariously entered such post office with intent to commit a larceny therein commit two distinct offenses, which may be separately charged and punished under the provisions of the United States Penal Code, § 190 (18 U.S. C.A. § 313), making it a criminal offense to steal any mail bag or other property belonging to the Post Office Department, and section 192 (18 U.S. C.A. § 315), declaring that whoever shall forcibly break into or attempt to break into any postoffice with intent to commit therein any larceny or other depredation shall be punished. This case likewise holds that the conviction and sentence of persons for such two distinct offenses do not put them twice in jeopardy within the meaning of the Fifth Amendment to the United States Constitution. To the same effect are the cases of Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151, and Morgan v. Sylvester (C.C.A.) 231 F. 886.
Bishop on Criminal Law (9th Ed.) vol. 1, p. 788, § 1062, has this to say on the subject: It is to be noted in the case at bar, as has already been pointed out, the burglary and larceny were charged in two separate counts in the information and two separate verdicts were rendered thereon. The view expressed by the Supreme Court of the United States in Morgan v. Devine, supra, which we follow, is in accord with the overwhelming weight of authority in state courts, the...
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