State v. Losieau

• Decision Date: 14 March 1969
• Docket Number: No. 37059,37059
• Citation: 166 N.W.2d 406,184 Neb. 178
• Parties: STATE of Nebraska, Appellee, v. Robert William LOSIEAU, Appellant.
• Court: Nebraska Supreme Court

Page 406

166 N.W.2d 406

184 Neb. 178

STATE of Nebraska, Appellee, v. Robert William LOSIEAU, Appellant.

No. 37059.

Supreme Court of Nebraska.

March 14, 1969.

Syllabus by the Court

1. The Habitual Criminal Law does not violate the constitutional guaranties of due process and equal protection.

2. The Habitual Criminal Law does not set out a distinct crime, but provides that the repetition of criminal conduct aggravates the guilt and justifies heavier penalties. The fact that a defendant has been guilty of a second felony does not make him guilty under the Habitual Criminal Law of an offense for which he may be separately sentenced, but increases the punishment for the last felony. The increased punishment for the latest felony is a court determination and not one for a jury.

3. 'Habitual criminality' is, under the Habitual Criminal Law, a state rather than a crime, and warrants greater punishment because of past conduct.

Robert William Losieau, pro se.

Clarence A. H. Meyer, Atty. Gen., Mel Kammerlohr, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ., and WALTER H. SMITH, District Judge.

WALTER H. SMITH, District Judge.

This is an appeal from the overruling of a motion to vacate and set aside a conviction and sentence for burglary and a sentence under the Habitual Criminal Law and from the overruling of a motion for new trial, brought under the provisions of the Post Conviction Act.

The record shows that the defendant, Robert William Losieau, was found guilty by a jury of the crime of burglary under section 28--532, R.R.S.1943, as alleged in Court I, and was found by the trial court to be a habitual criminal as alleged in Count II of the information. On January 12, 1962, defendant was sentenced for a term of 20 years in the Nebraska State Penitentiary. On June 6, 1968, defendant filed a motion to vacate and set aside said sentence alleging as reasons that he was deprived of a constitutional right to a trial by jury on the habitual criminal charge and that subsection (2) of the habitual criminal statute, section 29--2221, R.S.Supp., 1967, is unconstitutional in that it deprives an accused of a trial by jury. The trial court overruled this motion on June 10, 1968, on June 17, 1968, defendant filed a motion for a new trial which was overruled on June 18, 1968, and appeal taken to this court.

Defendant contends that he was denied a constitutional right to trial by jury on the habitual criminal charge and that section (2) of section 29--2221, R.S.Supp., 1967, was and is unconstitutional in that it deprives an accused of a right to a jury trial on serious offenses where the penalty is 2 years of more. In support of his position defendant cites Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. This case holds that the defendant, accused under the Louisiana law of simple battery, a misdemeanor punishable by 2 years imprisonment and $300 fine, was entitled under the Sixth and Fourteenth Amendments to a jury trial and that a crime punishable by 2 years in prison is a 'serious crime' and not a 'petty offense,' so that the Sixth and Fourteenth Amendments require the State to grant a jury trial. This case is no authority for the proposition here contended for by the defendant and is inapplicable to the question before the court. As will be hereinafter set forth, the hearing on Count II as to habitual criminal was not the trial of a new or separate offense. Another case cited by defendant is Chewning v. Cunningham, 368 U.S. 443, 82 S.Ct. 498, 7 L.Ed.2d 442. This was a habeas corpus proceeding commenced by a state prisoner in which the Supreme Court held that in the trial on a charge of being a habitual criminal the rule followed by the court concerning appointment of counsel in other types of criminal trials is equally applicable to proceedings under the Virginia statute, and denial of counsel where defendant requested one entitled him to a release on habeas corpus. The issue of trial by jury was not raised or decided by the court. It must be recognized that a defendant's right to counsel is not coextensive with the right to a jury trial. Similarly, other cases cited by the defendant do not support his contentions and no good purpose can be served by reviewing them here.

Subsection (2) of section 29--2221, R.S.Supp., 1967, known as the Habitual Criminal Law, provides as follows: 'Where punishment of an accused as an habitual criminal is sought, the facts with reference thereto must be charged in the indictment or information which contains the charge of the felony upon which the...