State v. Hardy

• Citation: 174 La. 458,141 So. 27
• Decision Date: 30 March 1932
• Docket Number: 31726
• Court: Supreme Court of Louisiana
• Parties: STATE v. HARDY

141 So. 27

174 La. 458

STATE v. HARDY

No. 31726

Supreme Court of Louisiana

March 30, 1932

Appeal from Fourteenth Judicial District Court, Parish of Beauregard; Thomas F. Porter, Judge.

L. J Hardy was convicted of larceny, and he appeals.

Affirmed.

Hawkins & Pickrel, of Lake Charles, for appellant.

Percy Saint, Atty. Gen., and John J. Robira, Dist. Atty., and Sam H. Jones, Asst. Dist. Atty., both of Lake Charles (James O'Niell, Sp. Asst. to Atty. Gen., of counsel), for the State.

LAND J. O'NIELL, C. J., absent.

OPINION

LAND, J.

Defendant was tried by jury of five in the lower court and was convicted of the larceny of cigarettes and tobacco of the value of $ 400, an offense which may be punishable by imprisonment at hard labor in the State Penitentiary for not more than 10 years. Act No. 124 of 1874, § 8.

Before sentence, the district attorney filed an information, reciting the conviction of defendant of the above named felony, and also of the crimes of burglary in Hill county, Tex., in May, 1917, and of burglary and larceny in Natchitoches parish, La., in March, 1922, and prayed that defendant be sentenced, in conformity with Act No. 15 of 1928 of this state, as a third felony offender.

After hearing had, defendant was sentenced to be imprisoned in the State Penitentiary at hard labor for the term of not less than 20 years and not more than 40 years, the term of imprisonment to commence from the date of incarceration therein, subject to such commutation as is allowed by law.

The errors of which defendant complained in the lower court are set forth in six bills of exceptions on appeal to this court.

Bill of Exceptions No. 1.

This bill was reserved to the overruling of a plea of former jeopardy and conviction of defendant of burglary and larceny in Natchitoche's parish.

There is no double jeopardy in this case. As said in Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 585, 56 L.Ed. 917: "The propriety of inflicting severer punishment upon old offenders has long been recognized in this country and in England. They are not punished the second time for the earlier offense, but the repetition of criminal conduct aggravates their guilt and justifies heavier penalties when they are again convicted."

Again it is said in McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 390, 45 L.Ed. 542:

"The fundamental mistake of the plaintiff in error in his assumption that the judgment below imposes an additional punishment on crimes for which he had already been convicted and punished. * * *

"But it does no such thing. * * * The punishment is for the new crime only, but is the heavier if he is an habitual criminal."

See, also, State v. Peace, 163 La. 121, 111 So. 621; State v. Guidry, 169 La. 215, 222, 223, 124 So. 832.

Bill of Exceptions No. 2.

This bill was reserved to the overruling of a motion to quash the bill of information on the following grounds:

(a) That Act No. 15 of 1928, under which the bill of information is drafted, is unconstitutional as it violates section 17 of article 3 of the present Constitution, in that it amends the criminal statutes of this state by increasing the penalty under certain conditions, without re-enacting and publishing at length the sections as amended.

(b) That Act No. 15 of 1928 is unconstitutional as it violates section 41 of article 7 of the State Constitution, which provides that the cases in which the penalty is necessarily punishment at hard labor shall be tried by a jury of twelve, nine of whom must concur to render a verdict.

In State v. Guidry, 169 La. 215, 124 So. 832, 833, we held, as stated in syllabus, that: "Act No. 15 of 1928, providing for increased punishment for second and subsequent offenders, does not require that proceeding to so punish be tried by a jury, since, though the questions involved are purely questions of fact, they do not relate to question of the guilt or innocence of the defendant."

See, also, State v. Charles, 169 La. 543, 125 So. 587.

As stated in State v. Dugas, 170 La. 5, 127 So. 345: "Under Double Penalty Act (Act No. 15 of 1928), declaring that accused shall have right to be tried according to law, state must prove by competent evidence to satisfaction of trial judge, not only such prior conviction as is required by statute, but also identity of accused." Syllabus 2.

The second ground of the motion to quash the information herein filed is, therefore, without merit.

The first ground of the motion is equally untenable, as Act No. 15 of 1928 does not pretend to amend and increase the penalties of the various criminal statutes of the state. Under this act, no defendant is punished a second or third time for the earlier offense, nor is his punishment for the earlier offense increased, but the punishment for the new crime is made severer, for the sole reason that a defendant has become an habitual offender.

Act No. 15 of 1928 is clearly independent legislation and is not obnoxious to section 17 of article 3 of the Constitution of 1921, as attempting to amend and re-enact the criminal statutes of the State without republishing them at length.

The third and last ground of the motion to quash is that, subsequent to his convictions for felonies in the state of Texas, defendant was fully pardoned and restored to citizenship by the Governor of that state, and that thereby these convictions were obliterated.

The prior felony convictions of defendant, charged in the information in this case, are as follows:

(1) "In Hill County, Texas, in May 1917 for the crime of burglary for which he was sentenced to two years in the State Penitentiary at Huntsville, Texas."

(2) "In Natchitoches, La., in March 1922 for the crime of burglary and larceny, as J. F. Johnson, for which he was sent to the penitentiary."

The certificate of the warden of the Texas State Penitentiary shows that Ralph Allen, alias Walter Keene, alias J. F. Johnson, alias

L. J. Hardy, defendant herein, was convicted in Hill county, Tex., for the crime of burglary, a felony; that he was sentenced on April 19, 1917, to a term of 3 years in that institution; that he was actually imprisoned from May 16, 1917, to November 14, 1917; that he escaped on November 14, 1917; and that he was not pardoned for this offense.

Another certificate of the warden of the Texas State Penitentiary shows that Walter Keene, alias Ralph Allen, alias J. F. Johnson, alias L. J. Hardy, defendant herein, was convicted in the courts for Bee, Comal, Gonzales, and San Patricio counties, Tex., for the crime of burglary and theft, felonies; that he was sentenced on January 21, 1918, to a term of 14 years, running concurrent with the sentence from which he had escaped; that he was actually imprisoned from January 21, 1918, to July 23, 1921; and that he was pardoned July 23, 1921, for this offense.

At that date, defendant had more than served his full sentence of three years for the first conviction for burglary in Texas, as this sentence ran concurrently with the sentence of 14 years, imposed for the second conviction for burglary and theft in that state.

Defendant's counsel contend that the pardon issued by the Governor of Texas operated as full remission of the prior and subsequent convictions of defendant in the state of Texas.

The proclamation of pardon offered in evidence by defendant recites, among other things: "Whereas Ralph Allen, convict No. 42,884, is now serving a term in the Penitentiary for burglary, . . . . . . now, therefore, I, Pat M. Neff, Governor of Texas, do . . . . . . hereby grant the said Ralph Allen a full pardon and restore him to full citizenship and the right of suffrage."

Ralph Allen is an alias of the defendant, L. J. Hardy. As the pardon is of date July 16, 1921, and refers to "Ralph Allen, convict No. 42,884, now serving a term in the Penitentiary for burglary," it is clear that defendant was pardoned for the second burglary and theft for which he was convicted in Texas and sentenced on January 21, 1918, for a term of 14 years, and not for the first burglary for which he was convicted in Texas and sentenced on April 19, 1917, to a term of 3 years, since defendant escaped on November 14, 1917, after being actually imprisoned from May 16, 1917, or about 6 months of a 3-year term.

The prior conviction of defendant for burglary in Texas is not referred to at all in the pardon granted to him, and its operation must be limited to the subsequent conviction for burglary and theft in that state, expressly mentioned in the pardon.

Corpus Juris states the rule as follows: "The recital of a specific distinct offense in a pardon limits its operation to that offense, and such pardon does not embrace any other offense for which separate penalties and punishments are prescribed." 46 C. J. 1194. citing cases from federal courts, Alabama, Missouri, Nevada, New York, Pennsylvania, South Carolina, Texas, and also from England.

Our conclusion is, therefore, that the prior convictions of defendant for burglary in Hill county, Tex., in May, 1917, and for burglary and larceny in Natchitoches parish, La., in March, 1922, must stand intact, as first and second convictions of defendant for felonies, while the conviction in the present case constitutes the third conviction of defendant for felony, and is a proper and legal basis for the imprisonment herein imposed.

Bill of Exceptions No. 3.

On the trial of the case, the state offered in evidence a certificate of Wade Long, warden of the Louisiana State Penitentiary,...