State v. Lutz.
| Decision Date | 30 April 1947 |
| Docket Number | No. 7.,7. |
| Parties | STATE v. LUTZ. |
| Court | New Jersey Supreme Court |
OPINION TEXT STARTS HERE
Error to Camden Quarter Sessions.
Leonard Lutz was convicted of four distinct robberies and sentenced as a third offender, and he brings error.
Affirmed.
October term, 1946, before CASE, C. J., and HEHER and COLIE, JJ.
Earl T. Milsop, of Paterson (Mortimer L. Mahler, of Paterson, of counsel), for plaintiff in error.
Gene R. Mariano, of Camden, for the State.
Plaintiff in error was convicted of four separate and distinct robberies upon indictments which also alleged his prior convictions of two unrelated high misdemeanors in the Atlantic Quarter Sessions, viz.: on October 29, 1924, breaking and entering, and on January 20, 1930, kidnapping. These indictments were tried together; they grew out of a holdup of a taproom and restaurant by four of five men armed with revolvers and a machine gun. The accused was sentenced upon each indictment as a third offender under R.S.2:103-9, for a amended by ch. 219 of the Laws of 1940, Pamph. L. p. 888, N.J.S.A. 2:103-9, for a term exceeding the maximum sentence for a first offense, the sentences to run consecutively; and he thereupon sued out a writ of error to review the judgment.
The entire record of the trial proceedings has been returned with the writ of error and bill of exceptions, pursuant to R.S.2:195-16, N.J.S.A.
Evidence of the earlier convictions was adduced by the State; and the admission of this proof is assigned for error. The accused did not go upon the witness stand; and it is said that the evidence of the prior convictions was therefore inadmissible under R.S.2:97-13, N.J.S.A., to affect his credibility, and it ‘is solely within the province of the court as a question of law,’ and not of fact for the jury, to determine whether the accused ‘should be sentenced as a third offender’ under sec. 2:103-9, supra, and thus the admission of the evidence was harmful as tending to establish guilt of the substantive crime laid to the accused in the indictment. The point is not well taken.
There is an aggravation of guilt in the repetition of criminal conduct that warrants the imposition of a heavier penalty when the malefactor is again convicted, if the legislative authority so wills; but it is essential to due process that there be an allegation in the indictment of the previous convictions upon which the enhancement of the punishment depends, and proof thereof upon the trial, or that there be a subsequent proceeding in which shall be determined the identity and status of the prisoner in this regard, and his liability to the increased penalty. Where a repetition of criminal action renders the accused liable to different and greater punishment, the subsequent offense is treated as a first offense, unless the earlier crimes are specified in the indictment and proved on the trial. State v. Garton, 102 N.J.L. 318, 133 A. 403; Weeks v. State, 101 N.J.L. 15, 127 A. 345; Graham v. State of West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917. The procedure must accord with the convict's fundamental right to be heard on notice as to him liability to the heavier penalty which may be inflicted only upon persistent offenders of the statutory category. Commonwealth of Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 58 S.Ct. 59, 82 L.Ed. 43. The usual practice is to allege the prior convictions in the indictment, and to submit the factual issue thereby arising to the jury; and this course is obligatory save where the statute makes other adequate provision for the inquiry, which is not the case here. The procedure has its roots in the fundamental common-law principle that in penal proceedings the accused shall be clearly informed of the charge which he is called upon the meet; and this of necessity includes a specification of the elements of aggravation which under the statute enlarges the grade of the crime by enhancing the punishment. People v. Sickles, 156 N.Y. 541, 51 N.E. 288; People v. Rosen, 208 N.Y. 169, 101 N.E. 855. The statute provides that the convict ‘may be sentenced for any period of time not exceeding three times the maximum period for which he might have been sentenced for the first offense, and no commutation shall be allowed him on the third sentence,’ and he shall, in addition, ‘serve the commutation time earned and...
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Worbetz v. Goodman
...94 (1951), certiorari denied 341 U.S. 955, 71 S.Ct. 1007, 95 L.Ed. 1376 (1951). Our former Supreme Court held in State v. Lutz, 135 N.J.L. 603, 52 A.2d 773, 774 (Sup.Ct.1947) that the imposition of enhanced punishment upon the basis of habitual criminality must be in accordance with due pro......
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