State v. O'Dell, No. 7666
| Court | United States State Supreme Court of Idaho |
| Writing for the Court | Robert E. Smylie, Atty. Gen.; KEETON; GIVENS |
| Citation | 225 P.2d 1020,71 Idaho 64 |
| Parties | STATE v. O'DELL. |
| Docket Number | No. 7666 |
| Decision Date | 22 December 1950 |
Page 1020
v.
O'DELL.
[71 Idaho 66]
Page 1021
Karl Jeppesen, Boise, for appellant.Robert E. Smylie, Atty. Gen., J. R. Smead, Asst. Atty. Gen., James W. Blaine, Pros. Atty., Boise, for respondent.
[71 Idaho 67] KEETON, Justice.
Defendant (Appellant) was charged with and found guilty of grand larceny, Sec. 18-4604, I.C., and as a persistent violator, Sec. 19-2514, I.C. The jury specifically found that the defendant had formerly been convicted of burglary on two several occasions as charged.
On the verdict, the trial court adjudged the appellant guilty of being a persistent violator of law, Sec. 19-2514, I.C., and sentenced him to serve not less than five nor more than ten years in the State penitentiary. From the judgment and sentence, the appellant prosecutes this appeal.
By assignments of error, the appellant contends; that a motion to strike that part of the information dealing with prior convictions should have been granted; that his objection to the introduction of proof of prior conviction (State's exhibits 3 and 4) should have been sustained; that instructions given by the court applicable to prior convictions of felony were error for the reason that exhibit 3 did not sustain the charge that defendant had been so convicted; that the verdict of the jury presumably based on admission in evidence of such exhibits constitutes reversible error.
The assignments of error, contentions, and argument of appellant present but a single question, i. e., had the appellant, prior to the charge preferred against him in this proceeding, been twice convicted of a felony within the meaning of Sec. 19-2514, I.C.?
Appellant argues that exhibit 3, introduced in evidence, proved the commission of a misdemeanor for all purposes after judgment. Hence exhibits 3 and 4 (evidence of prior convictions) were inadmissible. State's exhibit 3, after reciting arraignment and plea of guilty to burglary, and waiver of statutory time for pronouncing sentence, contains the following: 'It is therefor ordered, adjudged and decreed, That the said Jewell O'Dell is guilty of the crime of Burglary in the Night Time and [71 Idaho 68] that he be punished by imprisonment in the County Jail of Ada County, State of Idaho, for the term of six months * * *' (Emphasis supplied.)
State's exhibit 4, after similar recitals as are contained in exhibit 3, is as follows: 'It is therefore ordered, adjudged and decreed, That the said Jewell O'Dell is guilty of the crime of burglary in the night time and that he be punished by imprisonment in the State's Prison of the State of Idaho for the term of Not less than 3 years nor more than 15 years.'
Sec. 19-2514, I.C., provides: 'Any person convicted for the third time of the commission of a felony, * * * shall be considered a persistent violator of law, * * *'.
It is appellant's contention that the sentence imposed by the court on defendant's first conviction, burglary, State's exhibit 3, of six months in the county jail reduced the crime of burglary in the night time to a misdemeanor for all purposes after judgment.
Page 1022
Hence as a corollary appellant had never been convicted of two prior felonies.Sec. 18-111, I.C., is as follows: 'A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime is a misdemeanor. When a crime punishable by imprisonment in the state prison is also punishable by fine or imprisonment in a county jail, in the discretion...
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State v. Wolfe, No. 12575
...P.2d 552 (1964); State v. Moore, 78 Idaho 359, 304 P.2d 1101 (1957); State v. Owen, 73 Idaho 394, 253 P.2d 203 (1953); State v. O'Dell, 71 Idaho 64, 225 P.2d 1020 Id. at 476, 424 P.2d at 746. The Court continued on: From the foregoing cases, it is clear that a hearing regarding an applicati......
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State v. Creech, Nos. 14480
...rehabilitation of one who has for the first time fallen into error, and whose character for crime has not become fixed. State v. O'Dell, 71 Idaho 64, 225 P.2d "Our statute also provides the court with discretionary power to consider circumstances in aggravation or mitigation of punishment, ......
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Franklin v. State, No. 9268
...by the legislature. The language of I.C. § 19-2601 has been so interpreted by this Court in Ex parte Medley, supra, and State v. O'Dell, 71 Idaho 64, 225 P.2d 1020 (1950). See also Spanton v. Clapp, 78 Idaho 234, 299 P.2d 1103 (1956); State v. Evans, 73 Idaho 50, 245 P.2d 788 (1952); Storse......
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State v. Owen, No. 7853
...rehabilitation of one who has for the first time fallen into error, and whose character for crime has not become fixed. State v. O'Dell, 71 Idaho 64, 225 P.2d Our statute also provides the court with discretionary power to consider circumstances in aggravation or mitigation of punishment, a......
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State v. Wolfe, No. 12575
...P.2d 552 (1964); State v. Moore, 78 Idaho 359, 304 P.2d 1101 (1957); State v. Owen, 73 Idaho 394, 253 P.2d 203 (1953); State v. O'Dell, 71 Idaho 64, 225 P.2d 1020 Id. at 476, 424 P.2d at 746. The Court continued on: From the foregoing cases, it is clear that a hearing regarding an applicati......
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State v. Creech, Nos. 14480
...rehabilitation of one who has for the first time fallen into error, and whose character for crime has not become fixed. State v. O'Dell, 71 Idaho 64, 225 P.2d "Our statute also provides the court with discretionary power to consider circumstances in aggravation or mitigation of punishment, ......
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Franklin v. State, No. 9268
...by the legislature. The language of I.C. § 19-2601 has been so interpreted by this Court in Ex parte Medley, supra, and State v. O'Dell, 71 Idaho 64, 225 P.2d 1020 (1950). See also Spanton v. Clapp, 78 Idaho 234, 299 P.2d 1103 (1956); State v. Evans, 73 Idaho 50, 245 P.2d 788 (1952); Storse......
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State v. Owen, No. 7853
...rehabilitation of one who has for the first time fallen into error, and whose character for crime has not become fixed. State v. O'Dell, 71 Idaho 64, 225 P.2d Our statute also provides the court with discretionary power to consider circumstances in aggravation or mitigation of punishment, a......