State v. Malusky

• Decision Date: 07 May 1930
• Court: North Dakota Supreme Court

230 N.W. 735

59 N.D. 501

STATE OF NORTH DAKOTA, Respondent, v. JOE MALUSKY, Appellant

Supreme Court of North Dakota

May 7, 1930

Appeal from the District Court of Cass County, Cole, J Defendant, convicted of engaging in the liquor traffic as a second offense, was sentenced under the provisions of chapter 126, Session Laws 1927, providing for the imposition of an increased penalty upon conviction for a third or subsequent felony, and appeals.

Modified and affirmed. Remanded for resentence.

Cameron & Helgeson, for appellant.

Penal statutes are subject to the rule of strict construction. Nothing can be added to them by inference or intendent. 25 R.C.L. 1081.

James Morris, Attorney General, Charles Simon Assistant Attorney General, Harold D. Shaft Assistant Attorney General, and John C. Pollock, State's Attorney, for respondent.

"The liquor traffic is an outlaw under the constitution and laws of this state and under the statute enacted pursuant to the 18th Amendment to the Federal Constitution." State v. Lacy, 55 N.D. 83, 212 N.W. 442; State v. Schuck, 51 N.D. 875, 201 N.W. 342.

Nuessle, J. Burke, Ch. J., concurs. Burr, J. (concurring). Birdzell, J. I dissent. Christianson, J. (dissenting).

OPINION

NUESSLE

On May 28, 1928, Joe Malusky entered a plea of guilty to a charge of engaging in the liquor traffic as a second offense. He was sentenced to serve a term of one year and six months in the state penitentiary. Thereafter and on the 24th of April, 1929, an information was filed in the district court of Cass county charging that Malusky had, prior to the 28th of May, 1928, been convicted of two other felonies, to wit: grand larceny in the state of Wisconsin and perjury in the state of Minnesota and duly sentenced therefor. Thereafter the district court of Cass county ordered that Malusky be remanded to that court to the end that he might be tried and resentenced under said information. He was accordingly remanded to the district court, appeared to answer to the charge as contained in the later information, waived a trial on the question as to whether he had committed two prior felonies as charged therein, admitting that he had done so, requested that he be permitted to establish the facts with reference to the crime of violating the prohibition law as a second offense for which he had been theretofore sentenced on May 2, 1928, and challenged the jurisdiction of the court to impose any further sentence upon him on account of his previous conviction of felony. The court denied his request, overruled his challenge, and resentenced him to serve a term of four years in the state penitentiary beginning as of date May 28, 1928. Pursuant to such sentence he was again committed to the state penitentiary. Thereafter he perfected the instant appeal.

Chapter 126, Session Laws 1927, under which the judgment and sentence from which the instant appeal is taken was imposed, provides:

"Sec. 1. That if a person commits a felony, within this state, after having been convicted of two felonies, either in this state or any other state of the United States, the maximum punishment or penalty of imprisonment for such offense shall be twice the maximum sentence now or hereafter prescribed by law for a first conviction of said offense.

"Sec. 2. That if a person commits a felony, within this state, after having been convicted three or more times of felonies, either in this state or any other state of the United States, the maximum punishment or penalty of imprisonment for such offense shall be life imprisonment.

"Sec. 3. If at any time before judgment and sentence, or at any time after judgment and sentence but before such judgment and sentence is fully executed, it shall appear that one convicted of a felony, has been previously convicted of crimes as set forth in sections one, or two of this act, it shall be the duty of the state's attorney of the county in which such conviction was had to file an information with the court wherein such conviction was had accusing such person of such previous convictions, whereupon the court shall cause the said person, whether confined in prison or otherwise, to be brought before it, either in term or in vacation, and shall inform him of the accusations contained in said information by reading the same to him, and of his right to be tried as to the truth thereof according to law, and shall require such person to say whether he has been convicted as charged in said information or not. If he shall say that he has not been convicted as therein charged or refuses to answer, or remains silent, his plea, or the fact of his silence shall be entered of record, and the court shall make an order directing that the truth of the accusations made in said information be submitted to a jury at the then present term of court, if in term time and a jury be in attendance, unless continued for cause, or at the next ensuing term of court when a jury is in attendance. If the jury shall find and determine by evidence beyond a reasonable doubt that the accused has been guilty of one or more convictions as charged in said information, or if the accused 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 or penalty of imprisonment as in sections one or two provided, and shall vacate any previous judgment and sentence if one has heretofore been entered or imposed.

"Whenever it shall become known to any warden or person in charge of the place of imprisonment wherein such person is confined, or to any probation, parole, police officer, or other peace officer that any person charged with or convicted of a felony, has been previously convicted within the meaning of sections one or two of this act, it shall be the duty of such person forthwith to report the facts to the state's attorney of the county wherein the charge is pending or the conviction was had.

"Sec. 4. Provided, that the provisions of this Act shall not apply to offenses made felonies by statute not involving moral turpitude."

The fourth section of the act above quoted is that on which the appellant grounds this appeal. His first and chief contention is that the violation of the state prohibitory act, on account of which he was sentenced, though a felony, is not an offense involving moral turpitude.

The term "moral turpitude" is not new. It has been used in the law for centuries. It connotes something which is not clearly and certainly defined. See note in 43 Harvard L. Rev. p. 117. Generally it may be said that moral turpitude is evidenced by an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow man or to society in general. Drazen v. New Haven Taxicab Co. 95 Conn. 500, 111 A. 861; Kurtz v Farrington, 104 Conn. 257, 48 A.L.R. 259, 132 A. 540; Holloway v. Holloway, 126 Ga. 460, 7 L.R.A.(N.S.) 272, 115 Am. St. Rep. 102, 55 S.E. 191, 7 Ann. Cas. 1164; Re Henry, 15 Idaho 758, 21 L.R.A.(N.S.) 207, 99 P. 1054; Ex parte Mason, 29 Or. 23, 54 Am. St. Rep. 772, 43 P. 651; Rudolph v. United States, 55 App. D.C. 362, 40 A.L.R. 1042, 6 F.2d 487; 41 C.J. 212, and cases cited. Many cases may be found in the books dealing with the meaning of the term and attempting to apply it under varying facts and circumstances. Most of the cases seek to make a distinction between offenses mala prohibita and mala in se, and hold that only offenses mala in se involve moral turpitude. If this be the test it avails us little for the difficulty then is to discern the line between the two. History discloses that all offenses were at some time merely mala prohibita and as civilization advanced and social and moral ideals and standards changed they became one after another mala in se. Moral turpitude "is a term which conforms to and is consonant with the state of public morals; hence it can never remain stationary." Drazen v. New Haven Taxicab Co. 95 Conn. 500, 111 A. 861. At one time the wilful killing of another was not considered evil in itself, and this is so among some savage peoples today. At one time honor was vindicated and guilt and innocence determined by mortal combat between factions or individuals. Even now killing is justified in time of war. Larceny became an offense only as property rights were defined and society sought to benefit itself and protect the individual by penalizing the appropriation of property by those who could not justify such appropriation by the prescribed rules. Sexual crimes became such only as man progressed in civilization. At one time, not so greatly remote, prostitution was not regarded as immoral and in some countries is not even now banned by the law. However much every man may be answerable for his acts to his own conscience, society cannot permit each individual to say for it what is moral and what is immoral. To him who deliberately kills, murder is not immoral. To him who steals, larceny is not immoral. To him who lives only for the gratification of his appetites there is no immorality in doing so. Some standard must exist according to which the determination as to whether act or conduct is moral or immoral is to be made. That standard is public sentiment -- the expression of the public conscience. It may be manifest, unwritten, and more or less nebulous, as legend, as tradition, as opinion, as custom, and finally crystallized, written as the law. Thus the standard is fixed by the consensus of opinion, the judgment of the majority. When the majority is slight there is, of course, greater opposition on the part of the minority to the standard. The majority may become the minority and the standard change. But so long as it is established measurement must be made according to its terms. So w...