People v. Flynn

• Citation: 26 P. 1114,7 Utah 378
• Court: Supreme Court of Utah
• Decision Date: 01 July 1891
• Parties: THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. JOHN FLYNN, APPELLANT

26 P. 1114

7 Utah 378

THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. JOHN FLYNN, APPELLANT

Supreme Court of Utah

July 1, 1891

APPEAL from orders denying a motion in arrest of judgment, denying a motion for a new trial, and from a judgment of the district court of the third district. The opinion states the facts.

Affirmed.

Messrs Baldwin and Tatlock, and Mr. H. V. A. Ferguson, for the appellant.

Mr Charles S. Varian, U. S. Attorney, for the respondent.

MINER J. BLACKBURN, J., concurred.

OPINION

MINER, J.:

The defendant in this case was indicted in the third district court, October 4, 1890, charged with the crime of grand larceny in stealing a horse of the value of $ 50. Several errors are assigned as having occurred at the trial, but, as there is no testimony embraced in the abstract or record, we cannot review them here.

The abstract in this case is so imperfect that it is difficult for the court to consider any of the questions presented, especially as there were no sufficient exceptions taken to the charge of the court as would ordinarily justify the court in making any examination into the record, but, inasmuch as this objection was not urged upon the hearing, we content ourselves with what appears from the charge of the court, and from the motion in arrest of judgment, as showing that, at the time the defendant was indicted on this charge, he was serving out a term of imprisonment previously imposed upon him by the court upon a former conviction, whereon he had been sentenced for two years' imprisonment in the penitentiary, and from which imprisonment he had escaped, and in making his escape took off the horse he is charged with stealing. He was taken with the horse while endeavoring to make his escape, after which he was tried and convicted for the larceny in question, before the expiration of his first term of imprisonment. In reviewing the proceedings, we find no error in the refusal of the court to charge the jury as requested by the defendant's counsel. On motion for a new trial, and also in arrest of judgment, counsel for defendant urged that the court erred in instructing the jury that, "if the defendant was an inmate of the penitentiary at the time of the larceny, serving out a sentence of a competent court, and that he took the horse in question for the purpose of escaping, that would be larceny." This charge, taken by itself, and disconnected from that which followed, might be subject to the objection made; but we find the court charged the jury correctly in defining larceny; and also charged the jury that, before they could convict, "they must find, beyond reasonable doubt, that the defendant feloniously took and rode away the horse in question, with intent to deprive the owner thereof of the ownership and use of the horse; and that there ought to be a union of act and intent in every criminal offense. * * * That the taking must have been with intent to convert the horse to his own use, and take him away from the possession of the owner, and without any intent of returning the same," etc. Taking the charge as given, as a whole, we find no error in the instructions given.

The next question presented by counsel for the defendant is that the defendant had been attainted of felony, and was serving a two-years sentence in the penitentiary, previously imposed by the court, and that such period had not yet expired when this indictment was found and trial had; and that the court had no jurisdiction over the subject-matter, or the person of the defendant. Section 4749, Comp. Laws 1888, provides that "A sentence of imprisonment in the penitentiary for any term less than life suspends all civil rights of the person so sentenced, and forfeits all public offices, and all private trusts, authority, or power during such imprisonment." In California, under a similar statute, it is held (In re Nerac, 35 Cal. 392) that a creditor whose debtor is imprisoned in the penitentiary for a term less than life may sue and subject the property of such debtor to the satisfaction of his debt during the term of his imprisonment, and that the person so sentenced is not dead in law; that his civil rights in some matters are merely suspended, but that the rights of his creditors to sue and recover judgment against him are not suspended ( Phelps v. Phelps, 7 Paige 150); and that the forfeitures and disabilities imposed by the common law upon persons attainted of felony are not known in this country; that no consequences follow a conviction of felony, except those declared by statute.

It was early held in England that persons convicted of felony, and thereby attainted, might plead the same in bar to a subsequent prosecution for any other felony, whether committed before or after the first conviction, for the reason that by his first attaint his possessions were forfeited, his blood corrupted, and he became dead in law therefore any further conviction or attaint would be fruitless. 4 Bl. Comm. 336; 2 Hale, P. C. 250; 1 Chit. Crim. Law, 464. This same doctrine was carried out in the case of Crenshaw v. State, 1 Mart. & Y. 122, wherein it is held that a conviction, judgment, and execution upon one indictment for a felony not capital is a bar to all other indictments for felonies not capital, committed previous to such conviction. This doctrine, however, has seldom been followed in the United States, and the above case, though not expressly overruled, seems to be the only adjudication in this country, recognizing this doctrine. Bishop, in his Criminal Law (volume 1, § 898), says: "It was a doctrine of the English law, at the time when this country was settled, that, as a general rule, to which there were few exceptions, a person attainted for one felony could not be prosecuted criminally for another. But this doctrine, though recognized in one or two American cases, is not usually followed in this country. In England it was long ago abolished by an act of parliament." In Hawkins v. State, 1 Port. (Ala.) 475, the court holds that neither a conviction nor pardon for any particular offense can, in that state, operate as a bar or discharge of any other distinct offense; and it is now generally conceded throughout the United States that the doctrine that a conviction for another distinct felony, committed either before or after the first conviction, or while the criminal is serving out his sentence thereon, does not prevail in this country, and is as repugnant to the established principle of modern criminal law as it is unsupported by reason. ...