State v. George

• Decision Date: 30 June 1950
• Docket Number: No. 39890,39890
• Citation: 48 So.2d 265,218 La. 18
• Parties: STATE v. GEORGE.
• Court: Louisiana Supreme Court

Page 265

48 So.2d 265

218 La. 18

STATE v. GEORGE.

No. 39890.

Supreme Court of Louisiana.

June 30, 1950.

Rehearing Denied Oct. 3, 1950.

Harris M. English, Baton Rouge, for defendant-appellant.

Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Fred S. LeBlanc, Dist. Atty., Sargent Pitcher, Jr., Baton Rouge, for appellee.

HAWTHORNE, Justice.

Defendant, Charlie George, was charged in a bill of information filed on December 13, 1949, with being an habitual criminal under the provisions of Act No. 45 of 1942. In this bill it is charged that:

(1) He was convicted in this state on October 28, 1949, of the crime of theft of $1460.00 and on November 10, 1949, was sentenced to serve a term of imprisonment in the parish prison of East Baton Rouge Parish for one year, with credit for time served.

(2) Also in Louisiana, on May 19, 1942, he pleaded guilty to the crime of breaking and entering in the nighttime with intent to steal and was sentenced to life imprisonment in the Louisiana state penitentiary in conformity with Act No. 15 of 1928, but this sentence was commuted to seven years by the pardon board, and defendant was discharged from the penitentiary one February 17, 1948.

(3) On March 8, 1937, he was convicted of the crime of grand larceny of an automobile valued at $670.00 in Hamilton County, Ohio, and was sentenced to a term in the Ohio state penitentiary of from two to 40 years.

(4) On January 28, 1936, he was convicted of the crime of receiving and concealing stolen property in the State of Tennessee and was sentenced to a term in the penitentiary of that state of from one to three years.

(5) On December 5, 1934, he was convicted of the crime of house-breaking and receiving stolen property in Knox County, Tennessee, and was sentenced to the penitentiary of that state for a term of one year and one day.

(6) On December 11, 1931, he was convicted of the crime of house-breaking and larceny, also it Tennessee, and was sentenced to the penitentiary of that state for a term of three years.

The information further alleges that the above enumerated crimes for which the defendant was convicted in Ohio and Tennessee would be felonies if committed in Louisiana; further, that the defendant, Charlie George, is the same person who was convicted and sentenced for each of these crimes.

The information further alleges that the district court upon proper showing should annul and rescind its sentence imposed on November 10, 1949, wherein the defendant was sentenced to imprisonment in the parish prison of East Baton Rouge Parish for a period of one year, and that the defendant should then be sentenced in conformity with the provisions of Act No. 45 of 1942.

After trial as to the truthfulness of the allegations contained in the bill of information, the defendant was sentenced on February 24, 1950, to the state penitentiary for the balance of his natural life.

The defendant through counsel timely filed a motion to quash the bill of information on the ground that, prior to the filing of the bill of information charging him with being an habitual criminal, he had served his sentence of one year in the parish prison of East Baton Rouge Parish, with credit for time served, imposed on November 10, 1949, for his conviction of the crime of theft of $1460.00, and in this connection he alleges that he completed his sentence and was released from the parish jail on November 10, 1949, whereas the present bill of information was not filed until December 13, 1949. He contends that for this reason the sentence which terminated on November 10, 1949, cannot be extended or increased under the provisions of Act No. 45 of 1942, and that to impose a sentence upon him under the habitual criminal act would place him in double jeopardy. The motion to quash was overruled, and the defendant reserved Bill of Exception No. 1.

The habitual criminal act under which the defendant was sentenced to life imprisonment is Act No. 45 of 1942, the pertinent parts reading as follows:

'Section 1. * * * any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government or country of a crime which, if committed in this state, would be a felony, commits any felony within this state, upon conviction of such felony, shall be punished as follows: * * *.

'(3) If the fourth or subsequent felony is such that, upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life, then such person must be sentenced to imprisonment for such fourth subsequent felony for a determinate term not less than the longest term prescribed for a first conviction and not more than his natural life and in no case less than twenty-years.

* * *

* * *

'Section 3. If, at any time, either after conviction or sentence, it shall appear that a person convicted of a felong has previously been convicted of a felony under the laws of this state, or has been convicted under the laws of any other state or of the United States, or any foreign government or country of a crime, which, if committed in this state would be a felony, it shall be the duty of the District Attorney of the Parish in which subsequent conviction was had, to file an information accusing said person of a previous conviction.

'Whereupon, the court in which such subsequent 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 allegation 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 such allegations are true. If he denies the allegation of such information, or refuses to answer or remains silent, his plea, or the fact of his silence, shall be entered on the record and the judge shall fix a day to inquire whether the offender has been convicted of a prior felony or felonies, as set forth in such information. If the judge finds that he has been convicted of a prior felony of felonies, or if he acknowledges or confesses in open court, after being duly cautioned as to his rights, that he has been so convicted, the court shall sentence him to the punishment prescribed in this statute, and shall vacate the previous sentence, if any already imposed, deducting from the new sentence the time actually served under the sentence so vacated.' (All italics ours.)

Although counsel for defendant has not filed a brief in this court, due to the importance of the issues raised in this case we have carefully examined the habitual criminal statutes in this country and the jurisprudence, insofar as pertinent here, in our endeavor to solve the problem posed by this bill of exception.

The states of Virginia and New York enacted statutes providing for additional punishment for habitual offenders as early as 1796, over 150 years ago, and Massachusetts adopted such a statute in 1804. See Graham v. State of West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917. Now practically every state in the Union has such a statute. These statutes have been enacted as a deterrent and a warning to first offenders and as a protection to society by removing the habitual criminal from its midst, and are sound and wise social legislation.

In this state the procedure to be followed in charging a defendant under the habitual criminal statute is set forth in Section 3 of the act. In several of the states of this country which have habitual criminal statutes no particular procedure is set forth, among these being Missouri, Montana, New Hampshire, Oklahoma, Rhode Island, Utah, Vermont, Kansas, and Massachusetts. ¹ The statutes of other states specifically provide that a charge of a prior conviction must be contained in the indictment or information charging the offense upon which the accused is prosecuted, among these being Nebraska, Iowa, Indiana, Illinois, Maine, Wyoming, and Colorado. ² In Wisconsin the accused must be charged as a multiple offender in the information, indictment, or complaint, and the court may inquire into the matter after the verdict and before sentence. ³ In Oregon and Pennsylvania there is a limitation of time in which the information may be filed, on Oregon within two years after the last conviction and in Pennsylvania within two years either after conviction or sentence. ⁴ In Virginia the accused may be charged under its statute so long as he is confined in the penitentiary. ⁵ In other states by express statute a convicted defendant may be sentenced thereunder at any time before the judgment and sentence are fully executed, among these being Arizona and Minnesota. ⁶ Other states besides those named have defined different methods of procedure, but it would serve no useful purpose to analyze them here. However, the statutes of South Dakota, Ohio, New York, Florida, and New Mexico, which have procedural provisions similar to those of our Louisiana statute, set no time limit for initiating the procedure for sentencing habitual criminals. ⁷

Under our law it is not a crime to be a second offender; the statute merely prescribes a heavier penalty for repetition of criminal conduct. The additional punishment is for the new crime only, but is increased or made heavier because of the fact that the accused is an habitual criminal. As pointed out in State v. Rodman, 208 La. 523, 23 So.2d 204, '* * * it is the conviction, under the laws of any other state or of the United States or any foreign government or country, of a crime which, if committed in this state, would be a felony, which makes a defendant subject to the provisions of the act * * *, provided, of course, that such individual has not received a complete and full pardon therefor previous to his conviction in this state.' See also State v. Hardy, 174 La. 458, 141 So. 27; State v. Ugarte, 176 La. 54, 145...