McCummings v. State
| Decision Date | 16 December 1939 |
| Citation | 134 S.W.2d 151,175 Tenn. 309 |
| Parties | McCUMMINGS v. STATE. |
| Court | Tennessee Supreme Court |
Error to Criminal Court, Shelby County; Phil Wallace, Judge.
George McCummings was convicted of housebreaking, larceny and receiving stolen property as a habitual criminal, and he brings error.
Affirmed.
Robert A. Tillman, of Memphis, for plaintiff.
Nat Tipton, Asst. Atty. Gen., for defendant.
George McCummings, designated herein as defendant, by his assignments of error questions the validity of the Habitual Criminal Act, Chapter 22, Public Acts of 1939, upon two grounds: (1) that it is an ex post facto law; and (2) that it puts the accused to answer a criminal charge for which he is not presented or indicted.
Defendant was indicted for housebreaking, larceny, and receiving stolen property. The indictment contained no allegation that defendant was an habitual criminal or that he would be tried as such. During the course of selecting a jury the district attorney general announced that the defendant would be tried for housebreaking, and that in addition thereto he would be tried under the Habitual Criminal Law passed by the recent Legislature. The trial was had on September 27, 1939, and the following verdict was returned, to wit:
"We the jury find that the defendant is a habitual criminal and guilty as charged in the indictment."
Defendant's guilt is conceded; also that he is, in fact, an habitual criminal as defined in section 1, Chapter 22, Public Acts of 1939.
The judgment of the court was that the defendant be "delivered to the keeper of the State Penitentiary therein to be confined at hard labor for the rest of his natural life, that he be rendered infamous and incapable of testifying in any Court in the State or of exercising the elective franchise and that he pay the cost of this prosecution and that execution and mittimus issue;" etc.
The Act in question provides that any person convicted three times heretofore of any infamous crime (exclusive of petit larceny), or who has thrice been convicted of certain other high felonies, shall, upon conviction a fourth time of any such felony, be pronounced an habitual criminal and upon conviction, shall be sentenced to undergo confinement in the State penitentiary for the remainder of his or her natural life. Under section 6 of the Act the question as to whether the defendant is a habitual criminal is one for the jury to decide. Such is the general rule. 16 C.J. 1343. In the present case the trial court properly submitted this issue to the jury.
Such statutes as the one under consideration have existed in other jurisdictions for many years and are generally sustained as valid enactments. 16 C.J. 1339.
The authorities generally hold that such statutes do not fall within the class of ex post facto laws. 16 C.J. 1339; annotations 58 A.L.R. 20, 21; 82 A.L.R. 345, 347; and, also McDonald v. Massachusetts, 180 U.S. 311, 312, 21 S.Ct. 389, 45 L.Ed. 542. Such statutes have been sustained by the courts upon the theory that they do not undertake to punish for crimes previously committed and for which the offender has paid the penalty imposed by law, but that the Legislature has the power to provide for more severe punishment for hardened offenders who have not been deterred from a life of crime by prior conviction and punishment. Such a criminal is a menace to society and should be confined to prevent the committal of other, and probably more serious crimes.
The principal attack is made upon the following sections of the Act, to wit:
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Harrison v. State
...crime then the habitual criminal count is not at issue. Tipton v. State, 160 Tenn. 664, 28 S.W.2d 635 (1930); McCummings v. State, 175 Tenn. 309, 134 S.W.2d 151 (1939); State ex rel. Grandstaff v. Gore, 182 Tenn. 94, 184 S.W.2d 366 (1945); Ex Parte Bailey, 60 Okl.Cr. 278, 64 P.2d 278, 1936;......
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State ex rel. Grandstaff v. Gore
... ... provides only that if, upon conviction of a felonious ... offense, it is made to appear that the accused has a record ... of crime which brings him within the terms of the Act, then ... his punishment for the offense for which he is then tried ... shall be life imprisonment. McCummings v. State, 175 ... Tenn. 309, 134 S.W.2d 151; Tipton v. State, 160 ... Tenn. 664, 28 S.W.2d 635; 25 Am.Jur., 260, § 1; Notes 58 ... A.L.R. 20; 82 A.L.R. 345; 116 A.L.R. 209; 24 C.J.S., Criminal ... Law, p. 1143, § 1958. This judgment, which was affirmed by ... this Court, was neither void nor ... ...
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Brown v. State
... ... a charge that such person is an habitual criminal' ... Accordingly, it is held that in order for the jury to find ... that the defendant is an habitual criminal it is not ... necessary that he be so charged in the indictment which ... charges him with the fourth felony. McCummings v ... State, 175 Tenn. 309, 134 S.W.2d 151; State ex rel ... Grandstaff v. Gore, 182 Tenn. 94, 184 S.W.2d 366 ... The ... third count in the indictment was, therefore, surplusage in ... that it was not necessary in order to authorize the jury to ... find the defendant to ... ...