People v. Hanke
| Decision Date | 21 March 1945 |
| Docket Number | No. 28305.,28305. |
| Citation | 389 Ill. 602,60 N.E.2d 395 |
| Parties | PEOPLE v. HANKE. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Criminal Court, Cook County; John F. Haas, Judge.
William Hanke was convicted of larceny and found to be an habitual criminal, and he brings error.
Affirmed.
Wm. Hanke, pro se.
George F. Barrett, Atty. Gen., and William J. Tuohy, State's Atty., of Chicago (Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, and Joseph A. Pope, all of Chicago, of counsel), for the People.
By an indictment returned by the grand jury of Cook county, plaintiff in error was charged with the crimes of burglary and larceny. He entered a plea of not guilty and waived trial by jury. The cause was tried before the court without the intervention of a jury. The fourth count of the indictment charged plaintiff in error with the crime of larceny. It was further charged in that count that in November, 1940, plaintiff in error was convicted of the crime of rape and sentenced to the penitentiary for the term of one year, which he had served. The trial judge found him guilty of larceny. He found the value of the property stolen to be $185, and further found that the defendant was a habitual criminal, because of his prior conviction for rape. Plaintiff in error was sentenced to the penitentiary for the definite term of ten years, that accordance with the Habitual Criminal Act. accordance with the Habitual Criminal Act. Ill.Rev.Stat.1943, chap. 38, par. 602. To review that judgment, defendant has brought the record to this court by writ of error. The case is presented here on the common-law record only.
Defendant's first contention is that it was error to sentence him as a habitual criminal because the crime of rape was not included in the Habitual Criminal Act at the time of his prior conviction. The Habitual Criminal Act was amended in 1941. As amended, the crimes of rape and kidnapping were added to the offenses included within that act. He contends that he was entitled to be sentenced on his conviction for grand larceny to an indeterminate sentence of from one to ten years, for the reason that his prior offense was not included in the Habitual Criminal Act at the time of his former conviction. The crime of rape having been included in the Habitual Criminal Act by the amendment of 1941, after his former conviction, he argues that the amendment operates ex post facto and had the effect of increasing the penalty for the offense of grand larceny, of which he was convicted in this case.
In support of this contention, defendant cites a number of cases which state the law generally in regard to the operation of ex post facto laws. These cases, however, are not in point. The Habitual Criminal Act does not create a new or independent crime. It merely prescribes the circumstances under which one found guilty of a specific crime may be more severely punished because of a previous conviction. The punishment is for the new crime only. The penalty is made heavier because the defendant is a habitual criminal. The prior conviction is not an ingredient of the subsequent offense. It is merely a matter of aggravation, which affects only the punishment to be imposed for that offense. People v. Atkinson, 376 Ill. 623, 35 N.E.2d 58.
A statute increasing the punishment for a subsequent offense is not an ex post facto law merely because the prior conviction occurred before the statute was enacted or became effective. Ex parte Rosencrantz, 205 Cal. 534, 271 P. 902;State v. Guidry, 169 La. 215, 124 So. 832;State v. Charles, 169 La. 543, 125 So. 587;People v. Palm, 245 Mich. 396, 223 N.W. 67;State v. Zywicki, 175 Minn. 508, 221 N.W. 900;State v. Smith, 128 Or. 515, 273 P. 323. In Cooley on Constitutional Limitations (8th ed.) p. 553, the rule is stated as follows:
Here, the inclusion of the crime of rape in the Habitual Criminal Act, by the 1941 amendment, as one of the crimes the conviction of which would operate to increase the penalty to be imposed upon a subsequent conviction, does not operate ex post facto. Its only offect is to increase the punishment for a subsequent conviction of any of the crimes enumerated in said act.
The second contention of plaintiff in error is that the Habitual Criminal Act is unconstitutional because the crimes of rape and kidnapping were included therein by the 1941 amendment. It is argued that the punishment fixed by statute for the crimes of rape and kidnapping is not under the indeterminate sentence act, but for fixed terms. For that reason it is urged that the inclusion of those crimes in the ...
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...repeating offenders shall be subject to the heavier punishment under the act. We considered a similar contention in People v. Hanke, 389 Ill. 602, 60 N.E.2d 395 (1945), and found it to be clearly without merit. It need not be further discussed In Sanders v. Waters, 199 F.2d 317, 318 (C.A.10......
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