Levell v. Simpson

• Decision Date: 07 December 1935
• Docket Number: 32773.
• Citation: 52 P.2d 372,142 Kan. 892
• Parties: LEVELL v. SIMPSON, Warden. [*]
• Court: Kansas Supreme Court

52 P.2d 372

142 Kan. 892

LEVELL v. SIMPSON, Warden. ^[*]

No. 32773.

Supreme Court of Kansas

December 7, 1935

Syllabus by the Court.

Habeas corpus is not substitute for timely motion for new trial, nor for timely appeal, as means of correcting alleged procedural irregularities (Rev.St. 1923, 60--2213).

After verdict of guilty is rendered against accused, he is not entitled to jury trial on question whether he had theretofore been convicted of prior felony or felonies (Rev.St.Supp 1933, 21--107a).

Under habitual criminal statute which does not make commission of felony for second or subsequent time separate offense but merely increases punishment on conviction, information need not contain allegations respecting prior convictions of accused (Rev.St. Supp. 1933, 21--107a).

Defendant convicted of theft in nighttime of domestic poultry of value of $25 held properly sentenced to life imprisonment in state penitentiary, where he had previously been convicted of two felonies (Rev.St. 1923, 21-- 533, 21--534; Rev.St.Supp. 1933 21--107a).

Habitual criminal statute which merely increased punishment on conviction for subsequent felony held constitutional (Rev.St.Supp. 1933, 21--107a).

In an application for a writ of habeas corpus by a petitioner serving a life sentence in the penitentiary for grand larceny, which was imposed after it was shown that he had theretofore been convicted of two other felonies, for one of which he had served a term of imprisonment in the Kansas penitentiary and another in the Missouri penitentiary, the record examined and held:

1. Habeas corpus is not a substitute for a timely motion for a new trial, nor for a timely appeal, as a means of correcting alleged procedural irregularities.

2. After a verdict of guilty is rendered against a person on trial for a crime, and when the fact of his former conviction of one or more prior felonies is under judicial ascertainment in order to impose the proper sentence on him, he is not entitled to a jury trial on the question whether he had theretofore been convicted of such prior felony or felonies.

3. Where the commission of a felony for the second or any subsequent time is not a distinct and separate offense under the Crimes Act, but merely carries increased punishment on conviction, it is neither necessary nor proper to include in the information any allegations respecting any prior convictions of the accused.

4. The petitioner was properly sentenced as an habitual criminal under the statute.

5. The statute under which the petitioner was sentenced is not subject to any constitutional or other infirmity which would render void the sentence and judgment under which he is incarcerated in the penitentiary.

Original habeas corpus proceeding by Ed Levell against Lacy Simpson Warden of the Kansas State Penitentiary.

Writ denied, and proceeding dismissed.

James M. Rader and Lillie Knight, both of Kansas City, Mo., for petitioner.

Clarence V. Beck, Atty. Gen., and J. S. Parker, Asst. Atty. Gen., for respondent.

DAWSON Justice.

This is an application for a writ of habeas corpus. The petitioner is serving a life sentence in the state penitentiary for the crime of grand larceny. Through this proceeding he seeks his freedom on the ground that the sentence is void.

The facts are sufficiently developed by the application for the writ, by the response of the warden thereto, and by statements of counsel. There is no issue of fact requiring attention. It appears that in January, 1929, an information was filed in the district court of Shawnee county charging this petitioner (and another) with the crime of grand larceny as defined in R.S. 21--533; the particulars of his offense being the theft in the nighttime of domestic poultry of the value of $25. The pertinent statute reads: "Every person who shall be convicted of feloniously stealing *** in the night time any domestic fowls *** belonging to another, shall be deemed guilty of grand larceny."

In a trial before a jury, a verdict of guilty was rendered against the petitioner, following which he was sentenced according to law, and what the law prescribed as his punishment and sentence requires consideration of the following provisions of the Crimes Act:

R.S. 21--534. "Persons convicted of grand larceny shall be punished in the following cases as follows:

"First [for theft of automobiles, not pertinent.]

"Second [for theft of specified domestic animals, not pertinent.]

"Third, in all cases of grand larceny, *** by confinement at hard labor not exceeding five years."

R.S.Supp. 1933, 21--107a, being Laws 1927, c. 191. "Every person convicted a second time of felony, the punishment of which is confinement in the penitentiary, shall be confined in the penitentiary not less than double the time of the first conviction; and if convicted a third time of felony, he shall be confined in the penitentiary during his lifetime. Judgment in such cases shall not be given for the increased penalty, unless the court shall find, from the record and other competent evidence, the fact of former convictions for felony committed by the prisoner, in or out of this state."

In the instant case, the judgment roll dated June 3, 1929, recites the rendition of the verdict and that sentence was deferred until June 8, 1929. A further postponement occurred, until June 22, 1929, at which time the court made a finding that the defendant had theretofore been convicted of two prior felonies, for one of which he had served a term in the Kansas state penitentiary, and for the other he had served a term in the Missouri state penitentiary. On that finding, together with the verdict in the pending case, petitioner was sentenced to life imprisonment in conformity with the statute.

The petitioner's contentions are that the sentence and judgment pronounced upon him and under which he is now confined in the penitentiary were in violation of his rights under the State and Federal Constitutions, in particulars which will be noticed in the order in which they are presented.

It is first asserted that he was denied the right to appear and defend upon the question whether or not he was a habitual criminal. The record does not show any such denial of his right. The claim is wholly gratuitous as well as grossly out of time. Petitioner was represented by counsel, and, if any such procedural right of defendant had been violated, timely objection should have been made thereto. It could not be corrected by the trial court nor reviewed or redressed by this court at this late date. Habeas corpus is not a substitute for a timely motion for a new trial, nor for a timely appeal, as a means for the correction of procedural irregularities. R.S. 60--2213; In re Bolman, 131 Kan. 593, 595, 596, 292 P. 790; and note in 766 A.L.R. 468 et seq.

Petitioner's next contention is that he was entitled to a jury trial on the question whether he had been convicted of other felonies on two prior and successive occasions. He had no such privilege under Kansas law, as this court has heretofore held. In State v. Woodman, 127 Kan. 166, 172, 272 P. 132, where double the usual sentence was imposed for the crime of felonious assault, because, following the verdict and before sentence, it was shown that Woodman had been previously convicted of another felony, we said: "A final objection to the judgment is that the information on which defendant was prosecuted did not allege that defendant had formerly been convicted of a felony. There is a contrariety of judicial opinion as to the necessity for such allegation. People v. Gowasky, 244 N.Y. 451, 155 N.E. 737 [58 A. L.R. 9]; 31 C.J. 734, 735. Our statute of 1927 does not create a new offense. It merely prescribes a greater penalty for one who is convicted a second time of the commission of a felony and a still greater penalty for one who is convicted of a felony for the third time. To make his defense to a criminal charge, all the accused needs to know is the nature of the crime charged against him and the names of the witnesses with whom he will be confronted in a prosecution therefor. In this state it is no concern of the jury what the penalty for a crime may be, and it is just as well that the jurors' minds should not be diverted from the question of defendant's innocence or guilt by facts concerning defendant's prior convictions of other felonies. It is also fairer to defendant to keep such matters entirely away from the jury. After conviction, however, and before the allocution, the defendant should be timely apprised that a sentence under the act of 1927 will be demanded against him, so that he may show cause, if he can, why such higher penalty should not be imposed. 16 C.J. 1294, 1350." 127 Kan. 166 at page 172, 272 P. 132, 134.

See, also, State v. Haines, 128 Kan. 475, 479, 480, syl. 6, 278 P. 767; State v. Frizzell, 137 Kan. 35, 37, 19 P.2d 694.

Counsel for the petitioner ignore these cases completely, and press upon our attention various decisions from other jurisdictions. Those could only be helpful if the question were new and undecided in this jurisdiction. Moreover, we find that with scarcely an exception those decisions were based upon statutes which expressly prescribe the procedural method for ascertaining the fact of the prisoner's prior conviction of one or more felonies. See A.L.I. Code Crim.Proc. and commentaries, 1114-1121. In the Woodman Case, supra, we took due notice of the fact that there was a contrariety of judicial opinion on the proper way to take into account the fact of a defendant's prior conviction of a felony when determining what sentence under the later conviction should be imposed. This court has no misgiving as to the fairness and justice of the Kansas practice; keeping all intimation of...