State v. Findling

• Decision Date: 21 November 1913
• Citation: 123 Minn. 413,144 N.W. 142
• Parties: STATE v. FINDLING.
• Court: Minnesota Supreme Court

123 Minn. 413

144 N.W. 142

STATE

v.FINDLING.

Supreme Court of Minnesota.

Nov. 21, 1913.

Appeal from District Court, Hennepin County; Wilbur Booth, Judge.

George B. Findling was convicted of murder in the third degree, and appeals. Affirmed.

Syllabus by the Court

Sec. 4772, Rev. Laws 1905, providing for increased punishment of persons convicted of certain crimes, where it appears that they had previously been convicted of a felony, held valid, and not in violation of the twice in jeopardy clause of the state Constitution.

In the absence of some statute regulating the procedure, to authorize the court to impose the increased punishment, the fact of the prior conviction must be set forth in the indictment, established by proper evidence, and passed upon by the jury.

Though alleged in the indictment, it is unnecessary for the state to prove that the judgment of conviction in the former prosecution has not been reversed or set aside.

The judgment roll offered in evidence appearing fair upon its face, the judgment will be presumed in full force and effect until the contrary is shown.

The person charged to have been killed by the wrongful act of defendant was a boy about eight years of age. Within a few minutes after the injury was inflicted upon him, and which caused his death, he related to a near relative what had occurred, and this relative was permitted to testify to the statements so made to her on the trial of the indictment charging defendant with his death. It is held that the statements of the injured boy formed part of the res gestae and were properly received in evidence.

The deceased, a short time prior to his death, held a conversation with the county attorney upon the subject of his injuries and as to who inflicted them, during which he pointed out defendant as the guilty party. It is held that the county attorney was properly permitted to testify to this conversation, since the whole object, purpose, and effect thereof was to identify the person who committed the crime.

The testimony so given by the county attorney, in so far as it extended beyond showing the fact that the boy recognized and identified the defendant as the person who assaulted him, was without prejudice to the substantial rights of the defendant.

Numerous assignments of error considered, and held to present no ground for a new trial. James Cormican, of St. Paul, for appellant.

Lyndon A. Smith, Atty. Gen., and James Robertson and Erland Lind, both of Minneapolis, for the State.

BROWN, C. J.

Defendant was indicted and convicted of the crime of murder in the third degree, and appealed from an order denying a new trial. A large number of errors are assigned and discussed in the briefs, and those requiring special mention will be disposed of in their order.

[1] 1. The first assignment challenges the constitutionality of section 4772, R. L. 1905. This statute provides, stated in a word, for increased punishment for second offenders, and the contention is that the statute is in conflict with that provision of the Constitution declaring that no person ‘shall be twice put in jeopardy of punishment for the same offense.’ Section 7, art. 1, Constitution. The indictment charged the specific offense for which defendant was placed on trial, and further alleged the prior conviction. At the opening of the trial defendant moved to strike out all allegations in reference to the prior offense. The court denied the motion, and the question of the validity of the statute is thus raised. Though the statute in question has been upon our statute books for a number of years, the question of its validity has not heretofore been presented in this court for consideration. Similar provisions are found in the statutes of other states, and when called in question the constitutionality thereof has been affirmed. McDonald v. Massachusetts, 180 U. S. 311, 21 Sup. Ct. 389, 45 L. Ed. 542;State v. Dowden, 137 Iowa, 573, 115 N. W. 211;State v. Le Pitre, 54 Wash. 166, 103 Pac. 27,18 Ann. Cas. 922;Herndon v. Com., 105 Ky. 197, 48 S. W. 989,88 Am. St. Rep. 303;People v. Coleman, 145 Cal. 609, 79 Pac. 283;People ex rel. v. Craig, 195 N. Y. 190, 88 N. E. 38;People v. Sickles, 156 N. Y. 541;Hall v. Com., 106 Ky. 894, 51 S. W. 814;In re Miller, 110 Mich. 676, 68 N. W. 990,34 L. R. A. 398, 64 Am. St. Rep. 376;Ingalls v. State, 48 Wis. 647, 4 N. W. 785. The theory of the courts in upholding the statute is tersely stated by Judge Taylor in Ingalls v. State, 48 Wis. 647, 4 N. W. 785, as follows: ‘We are unable to see how the statute, which imposes a greater punishment upon a person who commits a second or third offense of the same character than it imposes upon the person who is convicted of a first offense, violates the provision of our Constitution which prohibits putting a person twice in jeopardy for the same offense. The increased severity of the punishment for the subsequent offense is not a punishment of the person for the first offense a second time, but a severer punishment for the second offense, because the commission of the second offense is evidence of the incorrigible and dangerous character of the accused, which calls for and demands a severer punishment than should be inflicted upon the person guilty of the first offense.’

[12] But counsel for defendant insists that the Constitution of many of the states, where the statute has been sustained, differs in a material respect from the Constitution of this state, and that the decisions referred to are inapplicable. The difference pointed out is found in the fact that in most of the states the language of the Constitution is that no person shall be ‘twice put in jeopardy,’ while the provision of our Constitution is that no person shall be ‘twice put in jeopardy of punishment.’ We fail to appreciate any difference in point of substance between the language included in the above quotations. ‘Twice in jeopardy’ and ‘twice in jeopardy of punishment’ mean the same thing. In fact, the Constitution of Wisconsin, where the statute is held valid, contains the language found in the Constitution of this state. In harmony with the authorities cited we affirm the validity of the statute without further discussion.

[2] 2. Defendant further contends that the matter of the prior conviction was improperly pleaded in the indictment, and, whether properly or improperly pleaded, that the court erred in admitting evidence of the same to go before the jury. This contention cannot be said to be wholly without merit. It may well be urged that the introduction of evidence by the prosecution of prior convictions would naturally tend to prejudice the accused before the jury, and lead to his conviction on general grounds as a bad person, and one that should be under restraint rather than at large. But the authorities do not sustain the contention that such evidence is inadmissible. In fact, by the great weight of opinion it is held that the evidence, and a verdict of the jury finding the prior conviction, are essential to the power of the court to impose the increased punishment. At least such is the rule in nearly all the states where no statutory method of determining the prior conviction is prescribed. Two questions of fact are presented in such case, namely: (1) The prior conviction; and (2) the identity of the accused as the same person in each prosecution. And the courts applying this rule all hold that the prior offense must be charged in the indictment and also established on the trial, and a verdict of the jury rendered thereon. Underhill, Crim. Ev. (2d Ed.) 512; 8 Am. & Eng. Encyc. Law, 486; Hines v. State, 26 Ga. 614;Maguire v. State, 47 Md. 485;People v. Sickles, 156 N. Y. 541, 51 N. E. 288;Paetz v. State, 129 Wis. 174, 107 N. W. 1090,9 Ann. Cas. 767, and authorities cited in notes in 9 Ann. Cas. 768, and 22 Ann. Cas. 1000. The only dissent from the rule stated is found in State v. Smith, 8 Rich. (S. C.) 460, and State v. Hudson, 32 La. Ann. 1053. All other courts where the question has been presented hold that the prior conviction must be pleaded and proven on the trial, and no distinction is made because of the fact that in some of the states the punishment is fixed and determined by the jury, and in others by the court upon a verdict of guilty. We follow and apply the general rule, though it may be remarked, in passing, that entire fairness in prosecutions of this character would suggest some statutory change in the law, dispensing with the necessity of pleading the fact of prior conviction, and providing for the determination thereof by the court after conviction of the charge on trial. This would avoid any possible prejudice to defendant.

[3][4] 3. The indictment pleaded the former conviction, and further that the judgment of conviction had not been...