Smalley v. People
| Decision Date | 03 December 1956 |
| Docket Number | No. 17783,17783 |
| Citation | 134 Colo. 360,304 P.2d 902 |
| Parties | Theodore William SMALLEY, allas Theodore Smalley, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Edward H. Sherman, Max M. Glaston, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John W. Patterson, Asst. Atty. Gen., for defendant in error.
Plaintiff in error, to whom we will refer as Smalley, is now and has been confined in the state penitentiary since September 9, 1946. At that time, with a codefendant, he was charged with and convicted of burglary with and without force, and on account of a previous record, Smalley was charged in the information as an habitual criminal, having committed three previous felonies. Upon conviction he was sentenced under the habitual criminal act to life imprisonment.
The information, after charging the offense of which he was convicted in 1946, also, in other courts, set out the alleged felonies, particularly the third court which alleged and charged a burglary and larceny conviction on October 24, 1932; the fourth count, a conviction of grand larceny on November 20, 1933; and the fifth count, a conviction of burglary and larceny on April 17, 1936, at which time and upon such conviction he was sentenced to the state penitentiary.
On April 24, 1952, Smalley filed a motion to set aside the judgment and life sentence, which he claimed to be void and erroneous, and prayed that he be discharged or resentenced nunc pro tunc according to law. This motion was based upon the claim that at the time defendant was converted of the charge set forth in the third county of the information and was sentenced to the state reformatory, he was nineteen years of age and this was a first offense. Upon denial of this motion, Smalley prosecutes this writ of error directed to the judgment of the district court of the City and County of Denver.
The statute under which this sentence was imposed is known as the 'Habitual Criminal Act' and was passed in 1945 and now appears as C.R.S. '53, 39-13-1, and the pertinent part thereof is as follows:
* * *.'
It is clear that the required former convictions must be felonies and felony is defined by our Constitution in Article XVIII, section 4 as follows:
'The term felony, wherever it may occur in this constitution, or the laws of the state, shall be construed to mean any criminal offense punishable by death or imprisonment in the penitentiary, and none other.'
A casual reading of this section clearly discloses that 'felony' under our Constitution is based upon the place of confinement in case of conviction, and the test by which an offense is determined as to whether it is a felony or not, is by the punishment prescribed. Smalley was under the age of twenty-one when he was convicted of his first offense and sentenced to the reformatory. For the purpose of meeting or satisfying the requirements of the Constitution this reformatory sentence does not suffice for a felony conviction. If there could be any doubt about the constitutional meaning of the word 'felony' in our habitual criminal act, we must, of course, upon constitution, give the construction that favors the liberty of the accused. The reformatory sentence was mandatory due to the age of the accused. This court said in People v. Godding, 55 Colo. 579, 583, 136 P. 1011, 1012: '* * * it is manifest that this court has expressly recognized this section as a definition of the term felony, and that the test by which to determine whether an offense is a felony is by the punishment prescribed.
All of this reveals that the trial court was without power to impose a life sentence under the habitual criminal act by using a previous conviction, namely, the reformatory sentence in 1932. We believe that sufficient has been said herein to clearly support our determination that the sentence imposed upon Smalley is contrary to law; therefore the trial court is directed to set aside the sentence and impose such sentence as it may determine under the statute in such case made and provided, with full time allowance thereon for time already served.
I respectfully dissent from the majority opinion herein announced. Article XVIII, Section 4, of our Constitution, already mentioned, states as follows:
'The term felony, wherever it may occur in this constitution, or the laws of the state, shall be construed to mean any criminal offense punishable by death or imprisonment in the penitentiary, and none other.'
To this rather simple definition the majority opinion adds the words 'and where the offender has been punished by a penitentiary sentence therefor'. The Constitution seemingly defines a crime, but the majority opinion insists that it defines a person.
The 'non-felonious' crime committed by the defendant here was burglary. Our statutes reads that burglary 'shall be punished by confinement in the penitentiary for a term not less than one year, nor more than ten years.' C.R.S. '53, 40-3-6. It seems unquestionable, therefore, that burglary, being punishable by imprisonment in the penitentiary, is a felony as clearly defined in the Constitution. The fact that the legislature has wisely provided substitute punishment, to-wit, probation and reformatory sentence, does not in any manner change the nature of the crime nor absolve the perpetrator from his willful criminal act.
The majority opinion is largely predicated on the finding that the reformatory sentence was mandatory under C.R.S. '53, 39-10-1, as follows:
'Courts having criminal jurisdiction in Colorado shall sentence to the state reformatory all male persons, and none other, duly convicted before them of felony for the first time, who at the time of the sentence shall be of the full age of sixteen years and not more than twenty-one years: * * * provided, that they shall sentence to the state penitentiary at Canon City any male persons between the ages of sixteen and thirty who shall be convicted of crimes involving the penalty of imprisonment for life, or the crime of murder in the first or second degrees or voluntary manslaughter.' (Emphasis supplied.)
This statute directs our courts to mete out reformatory sentences to persons under the age of twenty-one years 'duly convicted before them of felony for the first time.' In short, the statute states that there shall be a reformatory sentence because of the commission of a felony. The majority opinion states that because of the reformatory sentence there is no felony. Following this line of reasoning it becomes embarrassingly evident that a 'first felony' can never be committed by a male person under the age of twenty-one, with the exception of the few crimes for which reformatory sentences are not permitted. He is accordingly sentenced to the reformatory for that which he commits not. Females, however, apparently do not enjoy this peculiar immunity and are felons at first blush.
The Habitual Criminal Act does...
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