State v. Durham

• Decision Date: 12 December 1945
• Citation: State v. Durham, 177 Or. 574, 164 P.2d 448 (Or. 1945)
• Parties: STATE v. DURHAM.
• Court: Oregon Supreme Court

164 P.2d 448

177 Or. 574

STATE v. DURHAM.

Supreme Court of Oregon

December 12, 1945

Appeal from Circuit Court, Union County; R. J. Green, Judge.

George Washington Durham was convicted of having a pistol in his possession after having been previously convicted of a felony and sentenced to life imprisonment as an habitual criminal and he appeals.

Reversed and remanded.

Boon Cason, of Portland (Irvin Goodman and Leo Levenson, both of Portland, on the brief), for appellant.

Colon R. Eberhard, Dist. Atty., pro tem., of La Grande, for respondent.

Before BELT, C.J., and ROSSMAN, BAILEY, LUSK and HAY, JJ.

BELT, Chief Justice.

On February 24, 1945, the defendant, George Washington Durham was convicted in Union County of the crime of having a pistol in his possession after having been previously convicted of a felony.The possession of a pistol under such circumstances is punishable as a felony under § 25-112, O.C.L.A., as amended byChapter 330, Laws of Oregon for 1941.After verdict was returned and before sentence was imposed on such charge, the District Attorney filed an information on March 22, 1945, charging the defendant with being an habitual criminal in that previous to his last conviction he had been convicted of four felonies, to wit: (1) On December 10, 1928 in the State of Kansas, the defendant was convicted upon an indictment containing three counts (a) burglary in the second degree; (b) larceny committed at the time and upon the occasion of a burglary; (c) larceny of an automobile.(2) On June 12, 1934, in Multnomah County, Oregon, the crime of burglary not in a dwelling house.(3) On April 18, 1938, in Multnomah County, Oregon, the crime of having a pistol in his possession after having been convicted of a felony.(4) On May 13, 1938, in Multnomah County, Oregon, the crime of receiving stolen property.Defendant, upon being duly arraigned upon such charge, stood mute and thereupon the court entered a plea of not guilty.A jury was impaneled and after hearing the evidence, the instructions of the court, and the argument of counsel, returned a verdict in the form of special findings, establishing the identity of the defendant and his previous convictions of felonies specified in the information.Based upon such verdict, the court imposed a sentence upon the defendant that he be confined in the penitentiary for the term of his natural life.From this judgment of conviction the defendant has appealed.

It is assigned as error that the court refused to sentence the defendant on the main charge, namely, of having a pistol in his possession, before proceeding with the habitual criminal charge.We do not agree with this contention.It would have been premature and in violation of the purpose and spirit of the Habitual Criminal Act to have imposed sentence on the main charge before determining whether the defendant was a fourth offender as charged in the information.Indeed, the court had no authority to impose sentence on the main charge after this information had been filed and while it was pending.Had the court done so, such sentence could have been vacated in the event the defendant was found to have been an habitual criminal.Ex parte Towne, 14 Wash.2d 633, 129 P.2d 230, State ex rel. Edelstin v. Huneke,138 Wash. 495, 244 P. 721.

The Habitual Criminal Act, so far as material herein, provides:

§ 26-2803, O.C.L.A.'A person who, after having been three times convicted within this state of felonies or attempts to commit felonies, or, under the law of any other state, government or country, of crimes which, if committed within this state would be felonious, commits a felony within this state, shall be sentenced, upon conviction of such fourth, or subsequent, offense, to imprisonment in a state prison for the term of his natural life.'

§ 26-2804, O.C.L.A. 'If at any time, either after sentence or conviction, it shall appear that a person convicted of a felony has previously been convicted of crimes as set forth in this act, it shall be the duty of the district attorney of the county in which said conviction was had to file an information, accusing the said person of such previous convictions.Whereupon, the court in which such conviction was had shall cause the said person, whether confined in prison or otherwise, to be brought before it and shall inform him of the allegations contained in such information and of his right to be tried as to the truth thereof according to law, and shall require such offender to say whether he is the same person as charged in such information or not.If he says he is not the same person or refuses to answer, or remains silent, his plea, or the fact of his silence, shall be entered of record and a jury shall be empaneled to inquire whether the offender is the same person mentioned in the several records as set forth in such information.If the jury finds that he is the same person or if he acknowledges or confesses in open court, after being duly cautioned as to his rights, that he is the same person, the court shall sentence him to the punishment hereinbefore provided, and shall vacate the previous sentence, deducting from the new sentence all time actually served on the sentence so vacated.

'Whenever it shall become known to any warden or prison, probation, parole or police officer or other peace officer that any person charged with or convicted of a felony has been previously convicted within the meaning of said sections hereinbefore set forth, it shall become his duty forthwith to report the facts to the district attorney of the county from which he was sentenced.'

If the defendant was found not to have been previously convicted of the four felonies as charged, then no life imprisonment sentence could be imposed.The act provides for a separate and supplementary proceeding in order to enable the court to determine the kind and character of man upon whom sentence is to be imposed.It is a continuation of the original prosecution.If he is a second or subsequent offender then he must suffer an enhanced penalty.If it is shown that the defendant has been convicted of four felonies, including that of the main charge, then it is deemed under the act that he is hopeless, so far as reformation is concerned, and must, for the protection of society, be perpetually confined.No error was committed by the court in continuing the imposition of sentence during the pendency of the habitual criminal charge.

It is argued that the failure to sentence defendant upon the main charge deprived him of the right of appeal.In our opinion, when the court disposed of the habitual criminal proceeding and entered final judgment of conviction, the defendant had the right of appeal therefrom and could review the entire proceedings commencing with the original prosecution.The separate and supplementary proceeding does not involve a new and independent charge of the commission of a crime.It is a proceeding merely to determine the penalty to be imposed in the main charge.As said in State ex rel. Edelstin v. Huneke,supra[138 Wash. 495, 244 P. 722], 'It is no crime to be one 'who has been previously convicted' no matter how many times.'

The serious question is whether the court erred in...