State v. Holloway

• Citation: 144 Conn. 295,130 A.2d 562
• Parties: STATE of Connecticut v. Preston HOLLOWAY. Supreme Court of Errors of Connecticut
• Decision Date: 05 March 1957
• Court: Supreme Court of Connecticut

Page 562

130 A.2d 562

144 Conn. 295

STATE of Connecticut v. Preston HOLLOWAY.

Supreme Court of Errors of Connecticut.

March 5, 1957.

Douglass B. Wright, Asst. State's Atty., Hartford, with whom, on the brief, was Albert S. Bill, State's Atty., Hartford, for the state.

James D. Cosgrove, Public Defender, Hartford, for defendant.

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ.

INGLIS, Chief Justice.

The defendant is charged with a violation of the Uniform State Narcotic Drug Act, Gen.St.1949, § 3961 et seq., third offense, and this reservation seeks the advice of this court on various questions which are certain to enter into the decision of the case in the Superior Court. See Practice Book, § 469.

On October 24, 1956, the defendant was arraigned on an information charging him with violation of the narcotics law, third offense. The information was in separate parts. After he had been notified outside the courtroom that one part of the information alleged that he had been twice before convicted of violation of the narcotics law, he pleaded not guilty to the part of the information charging the principal offense and elected a trial before a jury of twelve. On December 12, 1956, he was arraigned on a substituted information which was substantially the same as the one to which he had pleaded on October 24, and he again pleaded not guilty to the principal offense charged and elected trial by jury. Counsel then began to examine prospective jurors on the voir dire. Before the jury were sworn, however, and of course before any evidence was taken, the court ruled that inasmuch as the law provides that the penalty for the crime with which the defendant was charged is life imprisonment, his trial could be had only upon an indictment by a grand jury. Accordingly, the court did not impanel a jury at that time but ordered a grand jury to be summoned for December 18. On that day the grand jury returned a true bill on an indictment against the defendant. This indictment was in two parts. In the first part, denominated 'Part A,' it was charged that the defendant, at Hartford, on or about July 7, 1956, possessed, had under his control, administered or dispensed narcotic drugs, heroin or morphine in violation of § 3962 of the General Statutes. Part B of the indictment alleged that the defendant was a third offender under §§ 2103d and 2104d of the 1955 Cumulative Supplement. One of the two prior convictions alleged was a conviction in the United States District Court for the southern district of New York on May 29, 1947, and the other was in the same court on March 26, 1952.

To this indictment the defendant filed a demurrer and a motion to quash. The ground stated in both is that 'the previous convictions alleged in Part B of the indictment occurred prior to the effective date of the passage of Sections 2103d and 2104d of the 1955 Supplement.' At this stage of the proceedings the parties stipulated for this reservation. The questions propounded are set forth in the footnote. ¹

As regards the first of these questions, the parties are now agreed that the proceedings looking to the selection of a jury to try the defendant on the information but stopping short of the administration of the oath to the jury will not constitute former jeopardy when the defendant is arraigned on the indictment. There can be no doubt that this is the law. State v. Lee, 65 Conn. 265, 273, 30 A. 1110, 27 L.R.A. 498; State v. Garvey, 42 Conn. 232, 233; State v. Benham, 7 Conn. 414, 418; 1 Wharton, Criminal Law (12th Ed.) § 395.

The remaining questions depend for their answer on the interpretation and constitutionality of §§ 2103d and 2104d of the 1955 Cumulative Supplement. ² These sections went into effect on June 30, 1955.

The contention of the defendant in connection with question 3 is that these sections must be interpreted in such a way that the prior offenses referred to in them must be offenses which were committed after the effective date of the sections. To support this contention he relies on State v. Sanford, 67 Conn. 286, 289, 34 A. 1045. In that case we had before us for interpretation § 1 of chapter 331 of the Public Acts of 1895. This section read: 'Every person convicted for a first violation of any of the provisions of the laws relating to the sale of spirituous and intoxicating liquors shall be punished by a fine of not less than ten nor more than two hundred dollars; for a second and all subsequent convictions such person shall be punished by said fine, or by imprisonment not less than ten days nor more than six months, or by such fine and imprisonment both.' We held that under this statute a conviction had prior to the effective date of the statute would not count as a first conviction so as to authorize the imposition of the penalty provided for a second or subsequent violation. The rationale of this decision was that the wording of the statute clearly expressed a legislative intent that the only conviction which could qualify as a first conviction would be one had under this particular act. It followed that a conviction which had antedated the act would not qualify, not so much because it was had prior to the effective date of the act in point of time, but rather because, not having been had for a violation of the act of 1895 itself, it was not the sort of violation which was intended by the act to be a prior conviction.

If § 2103d stood alone, we might be compelled to construe it in the same way that the act of 1895 was construed in State v. Sanford, supra, and hold that convictions of violation of the narcotics laws antedating the effective date of § 2103d could not be counted as prior convictions in determining the penalty to be imposed. Section 2103d does not, however, stand alone. It is accompanied by § 2104d, which also went into effect on June 30, 1955. Section 2104d makes it plain that in enacting § 2103d the legislature did not intend to limit the prior convictions which would increase the penalties for subsequent convictions to convictions had under § 2103d. Section 2104d provides that a conviction of violation of the narcotics laws of the United States or of any other state should be deemed a first or second offense for the purposes of § 2103d. Because of this provision, the reasoning which led to the conclusion in the Sanford case, supra, does not apply in the construction of § 2103d. In fact, the prior convictions charged in the indictment in the present case, since they are convictions of violation of the narcotics laws of the United States, are, by the express terms of § 2104d, such convictions as are deemed to be first and second offenses under § 2103d. Section 2103d is to be so construed that convictions of violation of the narcotics laws prior to the effective date of that section may be treated as previous offenses within the meaning of the act.

This construction of the act raises the question whether it is unconstitutional on the ground that it operates ex post facto. In resolving that question, the crucial fact is that § 2103d does not undertake to provide punishment for any crime committed prior to the date when it went into effect. The punishment provided is for a violation of the narcotics law which occurs subsequent to the effective date of the section. The only effect that a conviction antedating the statute has is to enhance the penalty to be imposed for a violation of the narcotics law. The theory of § 2103d is not that a person shall be punished a second time for an earlier offense but that the principal offense for which the person is being prosecuted under the statute is made more serious by reason of its being a repetition of an earlier offense or earlier offenses. State v. Mead, 130 Conn. 106, 108, 32 A.2d 273; State v. Reilly, 94 Conn. 698, 702, 110 A. 550. Consequently, in no sense does the statute operate ex post facto. 16A C.J.S., Constitutional Law, § 450, p. 161.

The fifth question propounded in the reservation is whether the procedure adopted in this case with reference to the form of the indictment was correct. The indictment was in two parts. On one page was part A, charging the principal offense, and on a separate page was part B, alleging the former convictions. Each page...