Fimara v. Garner

• Citation: 86 Conn. 434,85 A. 670
• Court: Supreme Court of Connecticut
• Decision Date: 15 January 1913
• Parties: FIMARA v. GARNER.

85 A. 670

86 Conn. 434

FIMARA

v. GARNER.

Supreme Court of Errors of Connecticut.

Jan. 15, 1913.

Appeal from Superior Court, Hartford County; Howard J. Curtis, Judge.

Petition for writ of habeas corpus by Pasquale Fimara, to which Ward A. Garner, having petitioner in custody, filed a return. From an order overruling a demurrer to the return and remanding petitioner to respondent's custody, he appeals. Affirmed.

John C. Chamberlain, of Bridgeport, for appellant.

Stiles Judson, State's Atty., of Bridgeport, and John S. Pullman, Special State's Atty., for respondent.

WHEELER, J. The return showed that the respondent held the petitioner under a warrant issued by the superior court ordering him to receive and keep the petitioner until the expiration of the term of imprisonment imposed by said court during a period not exceeding five years as a maximum term, and not less than three years as a minimum, upon his conviction for the crime of conspiracy. The petitioner demurred to the return upon the ground that "said judgment sentenced the prisoner to a place not warranted by law for the crime with which he stood charged, and for a longer term than justified by any statute." The accused was sentenced under G. S. § 1528, providing that, "In case of conviction for any high crime or misdemeanor at common law, the offender may be imprisoned in the state prison not more than five years, or in a jail not less than two months, nor more than one year, or fined not more than five hundred dollars, or both; and in case of conviction for any other offense at common law, the offender shall be imprisoned in a jail not less than thirty-one days, nor more than one year, or fined not more than three hundred dollars, or both."

The single question for decision is whether the crime of conspiracy is a high crime and misdemeanor within the intendment of this statute. The term "high crime and misdemeanor" is peculiar to our statutes. We find the same term used in the impeachment article of the federal Constitution. The interpretation given the term in decisions under this article cannot help in interpreting our statute, as the appellant claims, since that applies primarily to instances of official misconduct, and is used as a term of general description rather than as technical words of art under the common law. Pomeroy on Const. (7th Ed.) § 715; Black on Const. (3d Ed.) §§ 83, 85; Elliott's Debates, pp. 158, 218, 222, 228.

Our statute, as first passed in 1830, read: "In all cases of conviction of any person or persons for any high crime and misdemeanor at common law." It continued in this form to the Revision of 1875, when "or" was substituted for "and," making the statute read, "In case of conviction for any high crime or misdemeanor at common law." The study of the statute, in the light of the decisions thereunder, has convinced us that the subsequent change in phraseology was not intended to change the meaning of the statute; that "high" qualifies "misdemeanor" as well as "crime"; and that the term "high crimes and misdemeanors" includes no crimes other than high misdemeanors. When this statute was passed, crimes were divided into three classes: Treason, felony, and misdemeanor. Felonies comprised those crimes which are such at common law or have been made such by statute. Misdemeanors comprised all crimes less than felonies.

The term "misdemeanor" is descriptive of a crime not so grievous as the felony, although some misdemeanors may involve greater moral turpitude than some felonies. This statute was intended to provide a penalty for the commission of every misdemeanor, known to the law, whose penalty was not otherwise provided for. By it, misdemeanors were divided into two grades; those whose criminality was nearly akin to felony—that is, the more serious misdemeanors—and those of an Inferior kind, called petty or simple misdemeanors.

High crimes and misdemeanors are the more serious or aggravated misdemeanors; those which are nearly allied and equal in guilt to felony, but do not fall within its definition. Ross v. Crofutt, 84.Conn. 370, 374, 80 Atl. 90, Ann. Cas. 1912C, 1295.

"Any other offense at common law" of the statute comprises the petty or simple misdemeanors.

Under the common law, a conspiracy to commit either a misdemeanor or felony is only a misdemeanor. State v. Thompson, 69 Conn. 720, 725, 38 Atl. 868; State v. Setter, 57 Conn. 461, 464, 18 Atl. 782, 14 Am. St. Rep. 121; Berkowitz v. United States, 93 Fed. 452, 455, 35 C....