State v. Davis
| Decision Date | 08 March 1966 |
| Docket Number | No. 51532,51532 |
| Citation | 258 Iowa 1192,140 N.W.2d 925 |
| Parties | STATE of Iowa, Appellee, v. William I. DAVIS, Appellant. |
| Court | Iowa Supreme Court |
Matt Walsh, Council Bluffs, for appellant.
Lawrence F. Scalise, Atty. Gen., Don R. Bennett, Asst. Atty. Gen., and Fred J. Kraschel, Pottawattamie County Atty., for appellee.
Defendant was convicted of robbery in violation of section 711.2, Code, 1962, and sentenced pursuant to section 747.1 to not more than 40 years, the violation of section 711.2 being his fourth conviction of a crime specified in section 747.1.
This case has been tried twice in the district court. On the first trial the jury returned a verdict of guilty of robbery only, the jury apparently not finding the State had established the prior convictions. Defendant moved for a new trial and the motion was granted. On the second trial the jury convicted defendant again of robbery and answered 'Yes' respectively to three interrogatories inquiring whether they found defendant was the person previously convicted of the prior felonies alleged.
Prior to the second trial defendant moved to dismiss all of the indictment except the paragraph charging him with robbery because he had been tried and acquitted of being a habitual criminal and to try him again on this matter would be double jeopardy in violation of his constitutional rights. Defendant objected to the evidence of the prior convictions on the same ground. The county attorney read the indictment including the prior convictions to the jury at the commencement of the trial and introduced in evidence the authenticated copies of the prior convictions over defendant's objection.
I. Defendant urges two propositions for reversal here, 1, that he was denied due process of law in that he did not receive a fair and impartial trial because the county attorney was permitted to read the part of the indictment alleging the prior convictions, and 2, he was placed in double jeopardy by trying him the second time as a habitual criminal.
The first proposition has been decided against defendant in State v. Griffin, Iowa, 135 N.W.2d 77. We there held the matters raised by defendant were procedural only and the long established practice required by statute of presenting the prior convictions to the jury and requiring the jury to pass on them did not constitute a denial of due process of law. At that time the legislature was considering legislation to change this procedure to conform to defendant's position. This legislation is now law. Chapter 444, Laws of the 61st General Assembly.
II. Defendant's second proposition has not been passed on squarely by us. We have, however, considered similar propositions in State v. Eichler, 248 Iowa 1267, 83 N.W.2d 576, and State v. Gaskey, 255 Iowa 967, 124 N.W.2d 723. These two cases hold, and the authorities are thoroughly reviewed in each, that an allegation of a prior conviction does not charge a separate crime but is made only for the purpose of determining the penalty to be imposed upon conviction of the primary offense. And such allegation does not amount to charging a different or greater degree of crime. Section 747.1 here under consideration makes these things clear, it provides, 'Whenever any person has been, twice convicted of either of' specified crimes, 'or has been convicted of two or more of said crimes, and shall thereafter be convicted of any one of such crimes, committed after such conviction, he shall be imprisoned * * * for any term not more than forty years, * * *.'
The section simply provides for a greater penalty upon conviction for the third or more times of the crimes specified. No one would contend a person could be prosecuted under this section just because he had two or more convictions. He must thereafter be convicted of one of such crimes, usually referred to as the primary offense, which offense has been committed after such conviction. When he is thus convicted a greater penalty is imposed because of his prior convictions. The section does not provide a separate crime.
Defendant insists he was acquitted of being a habitual criminal by the jury verdict in the first trial. This, of course, is impossible. He could not be acquitted of a penalty nor could he be so convicted. He was convicted of the primary offense. The failure of the jury in the first trial to find against him as to the prior convictions does not remove them. The elements of those crimes, the evidence necessary to prove such, were not before the jury. The questions before the jury as to prior convictions are, was there a prior conviction and is the present defendant the identical person so convicted? State v. Eichler, supra, 248 Iowa page 1271, 83 N.W.2d 576.
In State v. Gaskey, supra, defendant urged the imposition of the penalty section 747.1 provides against one who has been sentenced under section 747.5 violates due process. It was argued this results in defendant being punished twice...
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Davis v. Bennett
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