State v. Malusky

• Decision Date: 07 May 1930
• Docket Number: No. 57.,57.
• Citation: 230 N.W. 735,59 N.D. 501
• Parties: STATE v. MALUSKY.
• Court: North Dakota Supreme Court

59 N.D. 501

230 N.W. 735

STATE

v.MALUSKY.

No. 57.

Supreme Court of North Dakota.

May 7, 1930.

Syllabus by the Court.

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.

Syllabus by the Court.

A violation of the prohibition law of the state of North Dakota as of a second offense involves moral turpitude.

Syllabus by the Court.

Chapter 126, Sess. Laws 1927, increases the penalty which may be imposed for a third or subsequent conviction of felony, whether the prior convictions were had in North Dakota or in any other state of the United States, but provides that “the provisions of this Act shall not apply to offenses made felonies by statute not involving moral turpitude.” Held, for reasons stated in the opinion:

(a) That in determining whether the provisions of said chapter shall apply in any case, the character of the offenses for which all the convictions, present or former, were had, whether committed in North Dakota or in any other state, must be determined.

(b) That in determining the character of such offenses, whether committed in North Dakota or in any other state, they must be measured alike by the same standards; that is, were they felonies within the meaning of that term as defined by the laws of the state of North Dakota, and, if felonies, did they involve moral turpitude as determined by the policy of the state of North Dakota?

(c) In determining whether or not a defendant's convictions of felony, either present or former, are such that the provisions of chapter 126 shall apply, each offense must be considered according to the class to which it belongs, and the court is not required to inquire into the facts constituting such offense in order to determine whether or not it involved moral turpitude.

(d) Said chapter 126 increases the maximum penalties for third and subsequent offenses to which it applies, leaving the minimum penalties unchanged.

Appeal from District Court, Cass County; A. T. Cole, Judge.

Joe Malusky was convicted of engaging in the liquor traffic as a second offender, and he appeals.

Judgment and sentence vacated, and case remanded for resentence.

BIRDZELL and CHRISTIANSON, JJ., dissenting.

Cameron & Helgeson, of Bismarck, for appellant.

James Morris, Atty. Gen., and Charles Simon and Harold D. Shaft, Asst. Attys. Gen., for the State.

NUESSLE, J.

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, Sess. Laws 1927, under which the judgment and sentence from which the instant appeal is taken was imposed, provides:

Ҥ 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.

§ 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.

§ 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.

§ 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.

[1] 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 43 Harvard Law 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 Company, 95 Conn. 500, 111 A. 861, 863;Kurtz v. Farrington, 104 Conn. 257, 132 A. 540, 542, 48 A. L. R. 259;Holloway v. Holloway, 126 Ga. 460, 55 S. E. 191, 7 L. R. A. (N. S.) 272, 115 Am. St. Rep. 102, 7 Ann. Cas. 1164;In re Henry, 15 Idaho, 758, 99 P. 1054, 21 L. R. A. (N. S.) 207; Ex parte Mason, 29 Or. 23, 43 P. 651, 54 Am. St. Rep. 772;Rudolph v. United States ex rel. Rock, 55 App. D. C. 362, 6 F.(2d) 487, 40 A. L. R. 1042; 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 the public morals; hence it can never remain stationary.” Drazen v. Taxicab Company, supra. At one time the willful killing of another was not considered evil in itself, and this is so among some savage peoples to-day. 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...