State v. Bailey
| Decision Date | 18 January 1928 |
| Docket Number | 28873 |
| Citation | 165 La. 341,115 So. 613 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. BAILEY |
Original Opinion of October 31, 1927, Reported at 165 La 341.
On the Merits.
O'NIELL C. J.
The defendant was prosecuted for the crime of robbery. In order to subject him to double the penalty (imprisonment at hard labor in the penitentiary for a term not exceeding 14 years) prescribed by the statute (section 809, Rev. Stat.) for the crime of robbery, it was charged in the bill of information that the defendant had been convicted previously of the crime of breaking and entering a dwelling house in the daytime with intent to steal, and that he had served a sentence of imprisonment for not less than four or more than five years in the penitentiary, without being pardoned. In the prosecution for robbery, the jury found the defendant guilty as charged, and the judge, claiming authority under section 974 of the Revised Statutes sentenced him to imprisonment at hard labor in the penitentiary for a term not less than 18 or more than 28 years. The maximum term of imprisonment imposed was therefore exactly double the maximum term allowed by the statute for the crime of robbery, and nearly six times the maximum term for the alleged burglary. The defendant has appealed from the verdict and sentence.
The bills of exception present only two questions for consideration. The first bill was reserved to the overruling of a motion of the defendant's counsel to retransfer the case from section C, presided over by Judge Henriques, to section D, presided over by Judge Echezabal. The case was originally allotted to section D, presided over by Judge Echezabal, and he exercised his jurisdiction to the extent of fixing the amount of the bond on which the defendant might be admitted to bail, and afterwards overruling a motion to reduce the bond. Thereafter, on motion of the district attorney and on his showing that the defendant was yet in jail unable to furnish bond, and that Judge Echezabal was absent on vacation and would be absent for nearly two months, and that Judge Henriques, presiding over section C of the court, was then trying jury cases, and that it was desirable to expedite the trial of this case, Judge Echezabal, with the written approval of Judge Henriques, ordered the case transferred from section D to section C. The transfer was made according to the rules of the Criminal District Court (section 3 of rule 13), viz.:
"Any case of any class whatsoever may be transferred as often as may be necessary for the proper expedition of the business of the court, upon the motion of either the State or the defendant, from one section of the court to another, provided that the judges of the sections of the court, from which and to which the case is transferred, consent thereto."
It is contended by the appellant that the rule of court which we have quoted is violative of the provisions of section 86 of article 7 of the Constitution that all cases in the criminal district court shall be equally allotted by classes among the judges of said court, and that each judge shall have exclusive control over any case allotted to him from its inception until its final disposition by the court.
On the contrary, section 86 of article 7 of the Constitution contains a proviso which, in our opinion, was intended to allow the criminal district court to adopt a rule for the transfer or retransfer of cases from one section of the court to another, whenever such transfer or retransfer might be deemed necessary to expedite the trial of a case. Section 86 of article 7 of the Constitution reads thus:
(The italics are ours.)
The proviso, which we have italicized, is a plain grant of authority for the criminal district court to adopt such a rule as section 3 of rule 13. There is therefore no merit in bill of exceptions No. 1.
Bill No. 2 was reserved to the overruling of a motion by defendant's counsel to strike out of the bill of information the allegation that the defendant had been previously convicted of the crime of breaking and entering a dwelling house in the daytime with intent to steal. The complaint made in the motion was, first, that the allegation, and the evidence to be offered in support of the allegation, that defendant was previously convicted of the crime of burglary, was irrelevant to the accusation on which he was about to be tried, and tended merely to prejudice the defendant in the estimation of the jury and therefore to deny him a fair and impartial trial; and, second, that section 974 of the Revised Statutes was inoperative and unenforceable against the provisions of section 982 of the Revised Statutes.
As a matter of convenience, we shall first dispose of the second complaint in the motion to strike out; that is to say, that section 974 of the Revised Statutes was superseded and virtually repealed by section 982. We do not find any merit in the contention, for there is nothing irreconcilable in the two sections of the Revised Statutes. Section 974 provides:
"The judge shall have the power to sentence any person who may be convicted for a second or third offense to double and triple the penalty imposed by law, and for a fourth offense, the person so convicted may be sentenced to perpetual imprisonment."
Section 982 provides:
"Whenever the punishment of fine and imprisonment are left by law at the discretion of any court, the fine shall not exceed one thousand dollars, nor the imprisonment two years."
Section 982 is applicable only to a case where the statute which has been violated does not fix the maximum penalty of fine or imprisonment, but, in terms, leaves the amount of the fine or the term of imprisonment, or both the amount of the fine and the term of imprisonment, in the discretion of the judge. Section 974 deals only with second and subsequent violations of a criminal statute, by authorizing the judge to impose, for a second offense, double the penalty imposed by the law which has been violated, or, for a third offense, triple the penalty imposed by the law which has been violated, or, for a fourth offense, a sentence to perpetual imprisonment.
The first complaint made in the defendant's motion to strike out of the information the reference to a previous conviction for the crime of burglary, however, is serious; that is to say, that the reference to the previous crime and conviction was irrelevant to the accusation on which he was about to be tried, and tended merely to create a prejudice against the defendant in the mind of the jury, and thereby to deprive him of a fair and impartial trial.
It is recognized universally that it is prejudicial to a defendant on trial for an alleged crime for the prosecuting attorney to bring to the knowledge and attention of the jury the fact that the defendant was previously convicted of some other crime, and, as a rule, such evidence is not admissible. That is why it was first thought by this court (in State v. Hudson, 32 La.Ann. 1052), and is yet held in some jurisdictions, that the allegation and proof of a previous conviction should not be presented to the jury, but should be made known only to the judge, after a conviction for the subsequent offense, in order to allow the judge to impose a double or enhanced sentence, under a statute such as section 974 of the Revised Statutes. 16 C. J. pp. 1339, 1342, 1343; 31 C. J. p. 737, § 286, citing Wright v. Commonwealth, 109 Va. 847, 65 S.E. 19. It is well settled now, however, by the rulings of this court, and is held by a majority of the courts in other jurisdictions, that the jury alone has authority to subject an accused party to the double or greater penalty, under a statute like section 974 of the Revised Statutes, and that, if the previous conviction was for an offense which would warrant the double or greater penalty for the subsequent conviction, the fact that the allegation and proof of the previous conviction is prejudicial to the defendant in the subsequent prosecution cannot override the necessity for making the allegation and proof of the previous conviction. State v. Compagno, 125 La. 669, 51 So. 681 (overruling State v. Hudson, supra); State v. Kierson, 140 La. 31, 72 So. 799; State v. Nejin, 140 La. 793, 74 So. 103; State v. Daniel, 141 La. 423, 75 So. 102; State v. Gani, 157 La. 231, 102 So. 318, and Id., 157 La. 235, 102 So. 319; State v. Habighorst, 163 La. 552, 112 So. 414; 16 C. J. p. 1342, § 3159; 31 C. J. p. 734, §§ 281 and 282; 8 R. C. L. p. 276, § 293; Commonwealth v. McDermott, 224 Pa. 363, 73 A. 427, 24 L. R. A. (N. S.) 431, and note p. 436; Jones v. State of Oklahoma, 9 Okla.Crim. 646, 133 P. 249, 48 L. R. A. (N. S.) 204, and note p. 205.
It is also well settled that proof of a previous conviction is inadmissible, and that the admission of such evidence...
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