People v. Johnson
| Decision Date | 20 March 1952 |
| Docket Number | No. 32162,32162 |
| Citation | 105 N.E.2d 766,412 Ill. 109 |
| Parties | PEOPLE v. JOHNSON. |
| Court | Illinois Supreme Court |
Charles Franklin Johnson, pro se.
Ivan A. Elliott, Atty. Gen. and John S. Boyle, State's Atty. of Chicago (John T. Gallagher, Rudolph L. Janega, Arthur F. Manning, and William J. McGah, Jr., all of Chicago, of counsel), for the People.
In 1942, plaintiff in error, hereinafter referred to as defendant, was charged with burglary in each of five separate indictments in the criminal court of Cook County. Each indictment alleged two prior convictions for grand larceny, under the second of which defendant had been found a habitual criminal and under each of which he had been sentenced to the penitentiary. Defendant entered a plea of not guilty, waived his right to trial by jury, and, at the conclusion of the trial, was found guilty by the court on each of the indictments. It was further found in each cause that 'he has been heretofore convicted of the crime of Grand Larceny.' Motions for new trial and in arrest of judgment were overruled, and sentences of imprisonment for life were imposed. Defendant has brought the causes to this court for review by writ of error. They are presented on the commonlaw records only.
The assignments of error concern the construction and validity of section 1 of the Habitual Criminal Act. (Ill.Rev.Stat.1941, chap. 38, par. 602.) It provides as follows: 'Whenever any person who has been convicted of burglary, grand larceny, horse stealing, larceny of a motor vehicle, larceny from the person, rape, robbery, forgery, arson, counterfeiting, kidnapping, confidence game or extortion by threats when the punishment was imprisonment in the peritentiary shall thereafter be convicted of any of such crimes, committed after the first conviction, the punishment shall be imprisonment in the penitentiary for the full term provided by law for such crimes at the time of the last conviction therefor; and whenever any such person, having been so convicted the second time, as above provided, shall be again convicted of any of said crimes, committed after said second conviction, the punishment shall be imprisonment in the penitentiary for a period not less than fifteen (15) years: provided that such former conviction, or convictions, and judgment or judgments shall be set forth in apt words in the indictment.'
Defendant first contends that in view of the allegations of the indictment it was mandatory on the court to sentence him as a third offender, under the second clause of the section; that this part of the statute, in requiring imprisonment for 'a period not less than' fifteen years, is ambiguous, and, under the rule requiring penal statutes to be strictly construed in favor of the accused, must be read to require fifteen years as both the minimum and maximum punishment for this class of offender. We find it unnecessary to consider the contention relating to construction of the act, for no finding was made by the court that he had previously been convicted for a second time. The judgments merely recite that 'he has been heretofore convicted of the crime of Grand Larceny,' thus purporting to bring defendant under the first portion of the section quoted. The allegations in the indictments as to former convictions must be supported by evidence, and as the evidence has not been preserved in the record before us, this finding of the court cannot be questioned.
Defendant next contends that in failing to designate a maximum period of imprisonment for third offenders the act is vague, indefinite and uncertain, and is, therefore, void. It is likewise unnecessary to consider this objection, for the reason that defendant was not sentenced under the provisions of the Habitual Criminal Act relating to third convictions. The court did not find a second prior conviction. Defendant is not, therefore, concerned with the punishment which may be imposed for a third conviction. The question does not involve him in any way or affect his punishment, and he is not in a position to raise it. People v. Hanke, 389 Ill. 602, 60 N.E.2d 395.
It is further argued that the act changes the punishment for the crimes mentioned, that it amends other portions of the Criminal Code by reference to titles only, and that it contravenes section 13 of article IV of the constitution, S.H.A. Such questions were considered by this court in People v. Cohen, 366 Ill. 190, 8 N.E.2d 184, and decided adversely to contentions now made by defendant. It is unnecessary to consider them again.
Defendant insists the act arbitrarily discriminates between persons who have committed essentially the same quality of crime, and, therefore, violates the equalprotection clause of the fourteenth amendment to the...
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