State v. Dunn

• Decision Date: 21 November 1967
• Docket Number: No. 10003,10003
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Joseph K. DUNN, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 88

434 P.2d 88

91 Idaho 870

STATE of Idaho, Plaintiff-Respondent, v. Joseph K. DUNN, Defendant-Appellant.

No. 10003.

Supreme Court of Idaho.

Nov. 21, 1967.

L. H. Merrill, Idaho Falls, for defendant-appellant.

Allan G. Shepard, Atty. Gen., and Roger B. Wright, Deputy, Atty. Gen., Boise, for plaintiff-respondent.

McFADDEN, Justice.

Appellant Joseph K. Dunn was convicted of the crime of arson and was sentenced as a persistent violator to serve a term of twenty-one years in the penitentiary, from which judgment and sentence this appeal was perfected.

Appellant was initially charged by a complaint filed in the Justice Court of Bonneville County with the commission of the crime of arson in the first degree alleged to have been committed on June 1, 1966, in Idaho Falls. A preliminary examination was held following which appellant was bound over to the District Court on the charge set out in the complaint. No mention was made in the complaint that appellant was a persistent violator as defined by I.C. § 19-2514.

The information filed in District Court consisted of two portions, the first (designated as the first page) charging the commission of the crime of arson in the first degree, and the second portion (designated as the second page) re-alleging the charge of arson and also alleging that appellant had previously been convicted of two felonies which were particularly described.

On trial in the district court, following the empanelling of the jury, the first page of the information charging appellant with the crime of first degree arson was read to the jury and they were advised that defendant plead not guilty. Trial was had before the jury on this charge, following which the court instructed the jury and the cause was submitted to them. The jury returned a verdict finding the appellant guilty of the charge of first degree arson, following which second page of the information, alleging that appellant was a persistent violator, was read to the jury. Immediately appellant moved that the count be dismissed on the grounds that appellant had never been accorded a preliminary hearing, which motion the court denied. The cause proceeded, with the state submitting evidence of two prior convictions of felonies by appellant; appellant submitted no evidence. The court again instructed the jury, which returned a verdict finding appellant to be a persistent violator.

Appellant filed a motion in arrest of judgment, contending (1) that the information charged two crimes, i. e., first degree arson and being a persistent violator, and hence was fatally defective; (2) (a) that the verdict of guilty of being a persistent violator of law is not in accordance with the law or evidence, inasmuch as he never had been accorded a preliminary examination, and (b) that the persistent violator statute is unconstitutional as being in violation of Idaho Const. Art. 1, Sec. 16, which prohibits ex post facto laws; (3) that the verdict is contrary to the law and evidence. This motion was denied by the trial court and judgment of conviction and sentence was entered.

The issues presented by appellant's assignment of error directed to the trial court's denial of his motion in arrest of judgment will be considered first and will be discussed in the order presented by the motion.

The first ground that the information charges two crimes, i. e., of arson and of being a persistent violator, is answered by the decision of this court in State v. Johnson, 86 Idaho 51, 383 P.2d 326 (1963), wherein it is stated:

'The persistent violator law (I.C. § 19-2514) does not create or define a new or independent crime. Rather, it renders a person convicted liable to punishment in excess of that which might have been inflicted upon him had he not been twice previously convicted. (citing cases). Accordingly, the information charged appellant only with the crime of forgery.' 86 Idaho at 57, 383 P.2d at 329.

The information was prepared and proceedings were conducted in accordance with the dictates of State v. Johnson, supra. Only one crime was charged by the information, i. e., that of first degree arson, with the punishment dependent upon whether or not the state proved appellant to be a persistent violator.

The next ground of appellant's motion in arrest of judgment was that he was not afforded a preliminary examination on the allegations of the information claiming he was a persistent violator, but only on the arson charge. Extensive research has disclosed the following cases directly in point on this persistent violator question, viz: Carter v. State, 292 P.2d 435 (Crim.App.Okl.1956); Murphy v. State, 50 Ariz. 481, 73 P.2d 110 (1937); Rains v. State, 142 Neb. 284, 5 N.W.2d 887 (1942).

Carter v. State held that a preliminary examination on the allegations that the accused is a habitual criminal, as well as the allegations charging commission of the crime, are both essential on the theory that the prior offenses enter into the immediate charge forming the basis of the prosecution. The court pointed out that the committing magistrate should also be advised of previous charges in order or intelligently fix the amount of bail.

However, Murphy v. State, supra, approached the problem from the viewpoint that the only offense charged is commission of the crime alleged, the recidivist charge being involved only insofar as the punishment is involved, and held that the preliminary examination need not mention the previous convictions forming the basis of the recidivist charge.

Rains v. State, supra, also held that when a preliminary examination determines a felony has been committed and that there is sufficient cause to believe the defendant guilty thereof (I.C. § 19-815), all requirements of law with respect to preliminary examinations were met and that the trial court could properly allow an amendment to the information alleging that the defendant was a habitual criminal.

Idaho Const. Art. 1 § 8, provides: 'No person shall be held to answer for any felony or criminal offense * * *, unless * * * on information of the public prosecutor, after a commitment by a magistrate, * * *.' (Emphasis added.) I.C. § 19-1308 provides: 'No information shall be filed against any person for any offense until such person shall have had a preliminary examination therefor, * * *.' (Emphasis added.) The statutory provisions regarding preliminary examinations provide: 'If, after hearing the proofs it appears either that no public offense has been committed or that there is not sufficient cause to believe the defendant guilty of a public offense, the magistrate must order the defendant to be discharged, * * *.' (I.C. § 19-814); and 'If, however, it appears from the examination that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof, the magistrate must indorse on the depositions an order, * * *.' (I.C. § 19-815) (Emphasis added.) The constitutional and statutory provisions require a preliminary examination as to proof of commission of criminal offenses. The habitual criminal statute, I.C. § 19-2514, does not deal with commission of criminal offenses as such, but deals only with the status of an accused after he has been found guilty of the offense for which he is tried. State v. Zeimer, 10 Utah 2d 45, 347 P.2d 1111, 79 A.L.R.2d 821 (1960). State v. Johnson, 86 Idaho 51, 383 P.2d 326 (1963) points out that the persistent violator law does not create or define a new or independent crime, 'Rather, it renders a person convicted liable to punishment in excess of that which might have been inflicted upon him had he not been twice previously convicted.'

The issues to be resolved at the time of a preliminary examination deal solely with the question of whether an 'offense' has been committed and if 'there is sufficient cause to believe the defendant guilty thereof,' and not with the issue of whether an accused should be subjected to additional punishment because he may be a persistent violator. There was no error committed by the trial court in this regard.

Appellant's next ground for his motion in arrest of judgment that the persistent violator statute is in violation of Idaho Const. Art. 1, Sec. 16, which prohibits ex post facto laws, is supported by no citation of authority. Furthermore, it has been repeatedly held by this and other courts that a persistent violator law is not ex post facto because it merely increases the penalty for the commission of a subsequent crime. In re Bates, 63 Idaho 748, 125 P.2d 1017 (1942); Thompson v. State, 195 Kan. 318, 403 P.2d 1009 (1965); People v. Dunlop, 102 Cal.App.2d 314, 227 P.2d 281 (1951); State v. Smith, 128 Or. 515, 273 P. 323 (1929); 25 Am.Jur., Habitual Criminals, § 5, p. 263; Annot.: 58 A.L.R. 20 at 21.

The final ground for appellant's motion in arrest of judgment was that the verdict is contrary to the law and evidence. The record discloses a marked conflict in the evidence; the state's evidence established that the appellant was observed purchasing a container of milk at about the time the fire was set, shortly thereafter appearing at a service station with a milk container and purchasing gasoline and having it placed in a milk container; that appellant was observed approaching the house where the fire was set carrying a container, stopping at the front door, and then going around to the rear door where light was seen shortly thereafter. The state's evidence further showed that appellant was observed throwing a match at the front door of the house after he came from behind the house and that a fire immediately started at the front door; that there was a fire burning at both the front and rear doors of the house. On the other hand, appellant denied setting the fire and claimed that he was not at the scene of the fire at the time it happened, but was in the company of other persons, who testified in support of his claim, during this period of time. Although a conflict in...